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`SE? 21:-9 2°05 C
`NA. PYMAYER wHt1T't:tsI0l\I,cLERK
`as-DISWTCOURT
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Civ. No. 00-2980 (RJL)
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`VEHNETIAN CASINO RESORT,
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`Plaintiff,
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`v.
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`"EQUAL EMPLOYMENT
`‘OPPORTUNITY COMMISSION,
`A
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`I
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`( ]
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`Plaintiff, Venetian Casino Resort (“Venetian” or “Venetian Casino”), bri gs this action
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`against defendant, the Equal Employment Opportunity Commission (“E 0C” or “the
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`Commission”), seeking to prevent the EEOC from releasing documents acquire from plaintiff
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`during past and current EEOC investigations. Plaintiff alleges that the E OC’s policy
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`regarding the disclosure of confidential and/or proprietary information obtain d .through the
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`Commissiorfs investigations violates Title VII ofthe Civil Rights Act of 1964 -(‘‘Title VII”);
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`42 U._S.C. § 2000e er Seq.; the Trade Secrets Act, 18 U.S.C. § 1905; th Freedom of
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`Information Act (“FOIA”), 5 U_.S.C. § 552 et seq.; Executive Order No. 12,60 ', §§ 1-3, Fed.
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`Reg. 23781 (June 23, 1987);
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`the Copyright Act, 17 U.S.C. § 101, et.
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`'eg.; and tl1e
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`Administrative Procedure Act (“APA”), 5 U.S.C. §§ 553, 701-06. Currentlyb ore the Court
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`are defendant’s Motion to Dismiss, or in the Alternative, for Summary ._ dgment and
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`".7 plaintiff’s Motion for Summary.
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`Judgment.‘ For
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`e reasons set
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`-forth below, defendant’s Motion for Summary Judgment is GRANTED and pl intiff’s cross— I
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`I ("motion is DENIED.
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`BACKGROUND2
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`In the spring of 1999, the Venetian Casino conducted a —“mass hiring pr “cess” to staff
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`5 a new hotel, casino, and resort in Las Vegas. (Am. Compl. ‘H 4.). In its wake,
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`t least eleven
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`jg _- gpeople filed employment discrimination complaintswith the EEOC against Ven tian, alleging -
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`discrimination based on age, race, and color in Violation of the. Age Dis rimination in
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`Employment Act (“ADEA”), 29 U.S.-C. § 621, and Title VII. (Id. W 7, 82.)
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`In
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`As part of investigating the complaints, the EEOC requested from Ve etian Casino
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`certain information, including data about the employees. (Id. '1] 28.) When V _ etian did not
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`' 2 respond to the EEOC’s information requests, the Commission issued an drninistrative
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`subpoena for the information. (Id.) Venetian objected to the subpoena throng the EEOC’s
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`I s .-administrative subpoena procedures as outlined in 29 C.F.R. § 1601.16. (Id. 1] 3 I.) The EEOC
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`_. denied those objections (id.), and Venetian then brought this action against
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`e EEOC for
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`_ declaratory and injunctive relief in December 2000.
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`In February 2002, Venetian settled all claims related to race, color, and ational origin
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`Pursuant to the Court’s November 10, 2005 Order (see Dkt. #44), thes motions will
`I be considered as cross-motions for summary judgment.
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`The “Background” section ofthis Memorandum Opinion has been ad ' ted from this
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`Court’s earlier Memorandum Opinion in Venetian Casino Resort v. EEOC, 360 F Supp. 2d 55
`; G).D.C. 2004).
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`-under Title VII, but not the claims of ageidisucrimiiiation. (See Order ofDismis ‘a1, Dkt. #22.)
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`The EEOC’s age discrimination files for the Venetian, as a result, remained o en.
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`At. this juncture, Venetian’s overarching contention is that the EEOC’ s p icy regarding _
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`the disclosure of information deemed confidential and/or proprietary violates Title VII, the .-
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`Trade Secrets Act, FOIA, Executive Order No. 12, 600, the Copyright Act,
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`CL E‘(‘D e2;»
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`Indeed, Venetian contends that because the EEOC does not require employe s that submit
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`information to be given predisclosure notice, the EEOC’s current policy cons 'tutes a “back
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`door” by which charging parties, their counsel, and incidental third parties ma obtain access
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`to open case files without the need for a FOIA request?
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`On January 12, 2004, this Court granted defendant’s Motion to Dismiss n the ground '
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`that the issue was not ripe for review. Venetian Casino Resort v. EEOC, 360 F Supp. 2d 55,
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`60 (2004). On May 27, 2005, our Circuit reversed, holding that “the questi n of whether
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`EEOC’s disclosure policyis lawful presents" a live and focused dispute emanatin from agency
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`action that is both final and consequential to Venetian.” Venetian Casino Resort
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`. EEOC, 409
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`The relevant disclosure provision is contained in Section 83 o the EEOC’s
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`' compliance manual. (Though it is not definitively clear whether the 1987 or 1992 vers on constitutes
`the “official version” of the manual, Section 83 is identical in all material aspe ts in the two
`versions.) According to the policy, the EEOC can disclose information from close Title VII and
`ADA case files under either Section 83 or FOIA; FOIA procedures do not apply o Section 83
`. disclosures.
`(Inzeo Dec]. 1[ 8 (attached to De£’s Mot. Summ. J.).) Section 83 do S not require
`EEOC staff to notify persons that have submitted information——confidential or 0th rwisem—to the
`EEOC during an investigation when a request for that information is received or prio _to the release
`ofthat information. (Id. 1} 10.) Thus, the EEOC policy lacks the requirement ofpredi
`losure notice
`to the submitter as demanded by Venetian Casino. (Def. ’s Opp’n to Pl.’s Mem, ofR aining Issues
`at 5.)
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`"F.3d 359, 367" (2005). Accordingly, this Court issued an -Order on Novem "er 10, 2005,
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`requiring both parties to file cross-motions for summary judgment on the fo owing issue:
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`“Assuming the EEOC has a disclosure policy or practice, written or otherwise, t at allows the
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`agency to release documents that the submitting party has identified as containin trade secrets
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`and/or confidential material without first notifying the submitting party, wheth r the policy is
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`lawful.” (Order, Dkt. #44 (emphasis in original) .) Briefing was complete 0 January 30,
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`2006, and thus, this is the sole issue currently before the Court.
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`I ANALYSIS
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`Reduced to its essence, plaintiff’ s contend that the disclosure policy of the EEOC by
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`' which it releases documents that the submitting party has identified as containin 1 trade secrets
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`a11d/or confidential matters, without first notifying the submitting party, is unl Wful because
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`' it violates (1) Title VII; (2) the Trade Secrets Act and the FOIA; (3) Executive
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`rder 12,600;
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`(4) the Copyright Act; and (5) the APA.‘4 For the following reasons, the Court
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`The EEOC also argues that this Court lacks subject matter j
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`e APA. The
`" Venetian’s claims because there has been no final agency action as is required by
`_ APA provides that any “person suffering legal wrong because ofagency action, or adv rsely affected
`or aggrieved by agency action within the meaning of a relevant statute, is entitled toj dicial review
`' thereof” 5 U.S.C. § 702. Administrative actions, such as the type at issue here, can only be fit for
`review, however, if the action is a “final agency action” under 5 U.S.C. § 704 (200 ). See Abbott
`Labs. v. Gardner, 387 U.S. 136, 148 (1967). “Ifthere is no ‘final agency action’ as r quired by the
`[APA], a court lacks subj ect matter jurisdiction.” Veldhoen v. U.S. Coast Guard, 35 .2d 222, 225
`(5th Cir. 1994) (citing Fed. Power Comm ’n v. Metropolitan Edison Co., 304 U.S 375, 383-85
`(1 938)).
`The United States Supreme Court and our Circuit have uniformly held that for agency action
`to be final, it “must mark the ‘consurnmation’ or the agency’s decisionmaking pro _ ss.-, and must
`either determine ‘rights or obligations" or occasion ‘legal consequences?” Alaska
`ept. ofEnvtl.
`Conservation v. EPA, 540 U.S. 461, 483 (2004) (internal quotations omitted). As fo
`ulated by the
`D.C. Circuit:
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`facc'ordi1igly,.G:RANTS the l:EOC’s Cross Motion -for sunarnary Judgment.5
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`In the administrative setting, two conditions must be satisfied for agency acti u. to be
`final: First, the action must mark the consummation ofthe agency’s=decisio u
`aking
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`which legal consequences will floW[.]
`Appalachian Power Co. '12. EPA, 208 F.3d 1015, 1022 (2000) (internal citations and q
`. omitted).
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`I
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`I _, reviewing this Court’s previous decision in Venetian Casino Resort v. EEOC, 360
`' (D.D.C. 2004), our Circuit held that “[i]n short, the question whether the EEOC’s di
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`t’. Supp. 2d 55
`closure policy
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`2005) (emphasis added). In reaching this decision, the court applied “[t]he framewor for assessing
`ripeness .
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`. established in Abbott Laboratories v. Gardner, 387 U.S. 136 (196 .” In Abbott
`' Laboratories, the U.S. Supreme Court held that, for administrative determinations to.be ripe for
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`judicial review, the issue must be purely legal and constitute “final agency action.” It
`at 149. Thus,
`implicit in our Circuit’s holding in the instant case——that the controversy is fit forjudi "a171‘-eview——is
`the finding that the EEOC’s action constituted “final agency action.” For this reasn, this Court
`properly has subject matter jurisdiction.
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`i be rendered
`Under Federal Rule of Civil Procedure 56, summary judgment “sh
`forthwith ifthe pleadings, depositions, answers to interrogatories, and admissions o n
`-file, together
`I with the affidavits, if any, show that there is no genuine issue as -to any material fa t and that the
`moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); se also Celorex
`Corp. v. Catrerr, 477 U.S. 317, 322~24 (1986).
`In deciding whether there is a dis uted issue of
`material fact, the Court must draw all justifiable inferences in favor of the non—n oving party.
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`must set forth specific facts showing that there is a genuine issue for trial,” Fed. R. Civ. P. 56(e).
`“[T]he determination ofwhether a given factual dispute requires submission to ajury . us’; be guided
`255. Ifthere
`3." by the-substantive evidentiary standards that apply to the case.” Anderson, 477 U.S. .
`is insufficient evidence indicating that a jury could return, a favorable verdict for n e nonmoving
`party, then summary judgment is proper. Id. at 252.
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`II
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`.Ti'tle"VII'ofthe Civil'12ights}Ict"of1964
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`In creating the EEOC under Title VII, Congress combined administrati
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`"e andjudicial
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`-[means of eliminating employment discrimination.“ Title VII gives the EEO two formal
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`.means of obtaining information when it investigates a charge: (1) The EEOC may examine
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`.. and copy any evidence in the possession of the employer being investigate , 42 U.S.C. §
`- -2000e-8(a), and (2) it may subpoena evidenc.e and documents, 42 U.S.C. § 200 e—9. Title VII
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`_limits the ability of the EEOC to make. public disclosures of information gath red during its
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`investigations, however, directing that “[c]harges shall not be made
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`blic by the
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`Commission..’’ 42 U.S.C. § 20006-5(b). And while it does not define the we
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`“public,” as
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`‘it is used in its regulation governing disclosure, the_EEOC construes the statut
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`s prohibition
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`‘of “public” release of information to permit pre—litigation disclosure of c arges and of
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`investigative information to the parties or witnesses where such disclos
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`“is deemed
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`necessary for securing appropriate relief.”7 29 C.F.R. § 1601.22 (emphasis a ' ed); see also
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`A person claiming to be the victim of discrimination first files a c arge with the
`' I.-EEOC, which then serves notice of the charge on the employer and opens an i vestigation to
`determine Whether there is reasonable cause to believe the charge is true. 42 U.S.C. § 2000e-503).
`If it finds reasonable cause, as it did in the instant case, it must try to elimin e the alleged
`' discriminatory practice “by informal methods of conference,conciliation, andpers asion.” Id. If
`' these attempts fail, the EEOC may bring a civil action against the employer. 42 U S.C. § 20006-
`560(1)-
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`'_
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`7 The EEOC’s disclosure" regulation provides in full:
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`Neither a charge, nor information obtained during the investigation of a ch ge of
`employment discrimination under the ADA or Title VII, nor information o tained
`from records required to be kept or reports required to be filed pursuant to th ADA
`or Title VII, shall be made matters ofpublic information by the Commission 1'i01‘ to
`the institution of any proceeding under the ADA or Title VII involving such harge
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`.E;ju.aliEnipiIoj>ni'ént Opportunity comm in 1}. Associaiedlpiy "Goods Corp}, 449
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`.s. 590, 596
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`(1981). Indeed, the EEOC’s disclosure regulation specifically codifies this po ition. See 29.
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`'C.F.R. § 1601.22 (permitting “disclosures to charging parties, or their attorney 2, respondents
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`3' or their attorneys, or Witnesses Where disclosure is deemed necessary for securi g appropriate
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`relief”).
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`Despite this statutory disclosure limitation, the United States Supreme ourt, in Equal
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`"Employment Opportunity Commission v. AssociaredDij2 Goods, Corp. , 449 U.
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`'. 590 (1981),
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`explicitly upheld the EEOC’s practice of making limited disclosures o
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`confidential
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`.'information to charging parties of their own Title VII charge files.
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`Id. at 597-603.
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`In
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`-Associated Dry Goods, as in the present case, an employer sued the EE C seeking a
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`'_ declaration that the EEO-C’s. disclosure policy embodied in Section 83 of it‘ Compliance
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`'- ' “Manual was unlawful. Specifically, the employer alleged a Violation of the onfidentiality
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`' provisions of Title VII.
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`In holding that the disclosure policy did not Violate Title VII, the
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`‘Supreme Court specifically noted the principle that courts should respec an agency’s
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`.contemporaneous construction of its founding statute, reasoning that the prin iple supports
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`or information. The provision does not apply to such earlier disclosures to c arging
`parties, or their attorneys, respondents or their attorneys, or witnesses Where
`disclosure is deemed necessary for securing appropriate relief. This provisi 11 also
`does not apply to such earlier disclosures to representatives of interested F deral,
`State, and local. authorities as may be appropriate or necessary to the carryin out of
`the Commission’s function under Title VII or the ADA, nor to the publication f data
`derived from such information in a form which does not reveal the ide tity of
`charging parties, respondents, or persons supplying the information.
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`'29 CPR. § 1601.22.
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`: affirniing the EEOC’s interpretation ofTitle VII, sincethe EEOC issued its dis ilosure policy
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`"shortly after Congress created it in 1965. Id. at 600 n.l7 (citing Power React rDev. Co. v.
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`Im"l Union ofElec., Radio & Mach. Workers, AFL-CIO, 367 U.S. 369, 408 (19 1)). Further,
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`the Supreme Court held that such a contemporaneous construction warrants spe ial deference.
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`when it has remained consistent over a long period of time.
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`Id. (citing
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`I"
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`' -Metropolitan Life Ins. Co., 409 U.S. 205, 210 (1972)).
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`rafiicante v.
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`The current EEOC disclosure regulation, like that in effect at the time t I e Associated
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`4 Dry Goods decision was rendered, reflects no significant change from the orig al regulation
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`"-that permitted disclosure to the charging party and others “as may be appropriat or necessary
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`_to the carrying out of the Commission’s functions .
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`. .” 30 Fed. Reg. 8409 1965); cf 29
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`'C.F.R. § 1601.22. The Supreme Court further noted that Congress ne er expressed
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`' "disapproval of the procedure, and its silence suggests its consent to the BE C’s practice.
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`“I-"Associated Dry Goods, 449 U.S. at 600 n.17 (citing United States v. Jackson, 80 U.S. 183,
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`7196-97 (1930)) This is precisely the practice that plaintiff challenges in this s it.
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`Moreover, in upholding the EEOC’s disclosure policy, the Supreme C rt concluded
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`that the EEOC’s interpretation of its founding statute
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`is consistent with the coordinated scheme of administrative and j dicial
`I-IE.8ca.
`enforcement which Congress created to enforce Title VII. First,
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`disclosureto theparties can speedthe Commission’srequiredinvestiga on: the _
`Commission can more readily obtain information informally—rath r than :
`through. its formal powers under 42 U.S.C. § 2000e-9——if it can pres nt the
`parties. with specific facts for them to corroborate or rebut. Second,
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`disclosure enhances the Commission’s ability to carry out
`its st tutory
`responsibility to resolve charges through informal conciliation and nego iation:
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`. . .Apartys1sӣar rniire'1i1C<e1y-to seaieehen he has enough'' infofinafion to e able
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`1 to assess the strengths and weaknesses of his opponent’s case as we] as his
`own.
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`Id. at 600-01. The Court further reasoned that “[i]f the Commission were ot allowed to .
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`--disclose to the parties essential facts it obtained during its investigation, it w
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`Id be able to
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`announce no more than its bare conclusion on reasonable cause, and these imp irtant benefits
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`-. ‘of the reasonable-cause determination would be lost.” Id. at 601 11.18.
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`Finally, the EEOC’s disclosure policy also supports Title VII’ s scheme 0 enforcement,
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`an important part of which is the private right of action.
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`Id. at 602 (citin -Alexander v.
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`- Gardner-Denver C0,, 415 U.S. 36, 45 (1974)). As the Associated Dry Good Court noted,
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`“Congress considered the charging paity a ‘private attorney general’ .
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`.
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`. [who could hardly
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`play that role without access to information needed_to assess the feasibility of tigation.” Id.
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`at 602. Thus, for all of these reasons, plaintiff’ s claim that the EEOC’s discl sure policy is
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`violative of Title VII is of no aVail.3
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`2.
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`The Trade Secrets Act & Freedom ofInformation Act
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`In its Opposition to the EEOC’s. Motion for Summary Judgment and in its own cross-
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`The Supreme Court’s affirmation ofthe EEOC’s disclosure policy is olstered by its
`8
`, decisionin University ofPem1sylvam'a v. EqualEmployment Opportunity Commissio , 493 U.S. 182
`(1990). In its decision, the Supreme Court reviewed the confidentiality provisions f Title VII and
`rejected the University’s argument thatmore confidentiality was needed, declaring
`at “Congress
`apparently considered the issue of confidentiality, and it provided a modicum of pro ection.” Id. at
`192. Though the protection of confidentiality provided by 42 U.S.C. § 2000e—8 e) is less than
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`very substantial. Few would deny that ferreting out this kind ofinvidious discrimin tion is a great,
`if not compelling, governmental iI1te1'est.” Id. at 193.
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`. ..motion for judgment, plaintiffargues that the Trade Secrets Ac
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`K:
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`18 U.S.C. §
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`1905, prohibits the EEOC from disclosing confidential information withou notice to the
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`submitting party and that it has a private right of action under this Act. The C" urt disagrees.
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`The Act itself, in pertinent part, provides:
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`f any
`Whoever, being an officer or employee of the United States or
`department or agency thereof .
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`. publishes, divnlges, discloses, or makes
`known in any manner or to any extent not authorized by law any info
`ation
`coming to him in the course of his employment or official duties or by reason
`of any ‘examination or investigation made by, or return, report or recor made
`to or filed with, such department or agency or officer or employee
`ereof,
`which information concerns or relates to the trade secrets, processes, ope ations,
`style of work, or apparatus, or to the identity, confidential statistic 1 data,
`amount or source of any income, profits, losses, or expenditures of any erson,
`firm, partnership, corporation, or association; or permits any income r turn or
`copy thereof or any book containing any abstract or particulars there f to be
`seen or examined by any person exceptas provided by law; shall be fine under
`this title, or imprisoned not more than one year, or both; and shall be r moved
`from office or employment.
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`18 U.S.C. § 1905.
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`By its terms, the Trade Secrets Act is a criminal statute that proscribes
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`CD 35S.3 oH:
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`Z I-individual officers ofthe government and its agencies. Recognition that the A t is a criminal
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`statute is significant because, as our Circuit has held, it must therefore be narro ly construed.
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`in Charles River Park A., Inc. v. Dep ’1.‘ ofHousing & Urban Dev. , 519 F.2d 935, 43 '(D.C. Cir.
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`_ 1975). 2 Indeed, the Supreme Court, in Chrysler Corp. v. Brown, 441 U.S. 281, 316 (I979),
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`. acknowledged as much when it held that the Trade Secrets Act does not affor a private right
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`- of action to enjoin disclosure of information in violation of the statute. In th t decision, the
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`Court referenced its decision in Cart v. Ash, 422 U.S. 66 (1975), stating that
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`this Court has
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`1. rarely inipliedla private right of action under a criminal statute.” Chrysler Cor .
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`--3.16. Importantly, the text of the Trade Secrets Act does not endeavor to cre e affirmative ”-
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`_ ‘',obligations on agencies for its implementation and does not require that gencies issue
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`regulations governing its provisions. This omission is significant because ur Circuit, in .
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`- discussing the Trade Secrets Act, has noted that it is “considerably more reluc ant to engraft
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`numerous and significant qualifications onto an apparently clear, unambiguous ext where the
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`provision is criminal rather than civil in nature.” CNA Fin. Corp. v. Donovan, 30 F.2d 1 132,
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`1150 (D.C. Cir. 1976). The Trade Secrets Act alone, therefore, does no mandate any
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`; particular EEOC procedure such as pre-release notification, nor should any b grafted on by
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`this Court?
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`A facially more difficult question is presented by the conclusion ofour
`" Financial Corp. that the scope of the Trade Secrets Act is at least co«extensi
`
`
`Exemption4 ofFOIA, 5 U.S.C. § 552(b)(4). CNA Fin. Corp, 830F.2d at 1151.
`
`ircuit in CNA
`' with that of "
`
`abroad sense,
`
`FOIA places a general obligation on agencies to make information available to th public, see 5
`U.S.C. § 552(a), and lists exemptions that identify certain materials that are no subject to its
`disclosure obligations, see 5 U.S.C. § 552(b). Exemption 4, referenced in CNA F ancial Corp,
`provides that FOIA’s disclosure requirements do not apply to “trade secrets and ommercial or
`
`- financial information obtained from aperson and privileged or confidential,” 5 U.S.
`. § 552(b)(4),
`and it is the Trade Secret Act’s relation to this exemption that plaintiff argues prohi
`ts the EEOC’s
`disclosure in the instant case.
`
`
`
`Aplain reading ofF-OIA, however, belies plaintiffs argument. Section 552( ) ofFOIA lists
`the types of information that agencies shall make available to the public, While. Sect 'on.552(b) lists
`
`matters to whichthepreceding section doesnot apply. Section 552[b) doesno mandate that
`
`disclosure of such materials is absolutely prohibited. Indeed, such a plain reading f the statute is
`consistent with the Supreme Court’s interpretation of FOLA. In Chrysler Corp, the ourt held that
`' “FOIA is exclusively a disclosure statute .
`.
`.
`. [and] does not give the authority to at disclosure.”
`I 441 U.S. at 292. The Court further found that, with respect to FOM, “the congressio al concern was
`with the agency ’s need or preference for confidentiality; the FOLK by itself protects he submitters’
`interest in confidentiality only to the extent that this interest is endorsed by the agen
`collecting the
`information.” Id. at 292-93 (ernphasisin original). The Court ultimately concluded that “Congress
`did not limit an agency’s discretion to disclose information when it enacted the F0 . It necessarily
`
`,
`‘
`
`J
`
`i
`:
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`'
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`.
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`'
`
`M
`
`i E
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`E E i l E
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`ll
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`Case 1:00-cv-02980-RJL Document 52 Filed 09/29/06 Page 12 of 17
`Case 1:00—cv—02980—RJL Document 52 Filed 09/29/06 Page 12 of 17
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`The head of each Executive department and agency subject to the Free ' om of
`Information Act shall, to the extent permitted by law, establish proce
`res to
`notify submitters of records containing confidential information‘° desc 'bed in
`section, 3 ofthis Order, when those records are requested under [FOIA], if after
`reviewing the request, the responsive records, and any appeal by the re
`ester,
`the department or agency determines that it may be required to disclose _
`‘ cords.
`Such notice requires that an agency use good-faith efforts to advise su mitters
`of confidential information of the procedures established under this 0 ' er.
`
`
`
`For confidential commercial information submitted on or after January
`the head of each Executive department or agency shall, to the extent p
`by law, establish procedures to permit submitters of confidential info
`designate, at the time the information is submitted to_ the Federal gove
`a reasonable time thereafter, any information the disclosure of. W 'ch the
`submitter claims could reasonably be expected to cause substantial co
`etitive
`harm .
`.
`.
`. The head of each Executive Department or agency shal , to the
`extent permitted by law, provide the submitter notice in accordance wi
`section
`1 of this Order Whenever the department or agency determines that it may be
`required to disclose records (I) designated pursuant to this subsection; 0 (ii) the
`disclosure of which the department or agency has reason to believ could
`reasonably be expected to cause substantial competitive harm.
`
`
`
`_- --Id. Plaintiff also bases its claim on Section 3(b) of the Order, which provide :_
`
`follows that the Act does not afford [the plaintiff] any right to enjoin agency disclos
`
`e.” Id. at 294.
`
`.
`
`Exemption 4,
`Executive Order 12,600 defines “confidential” by reference to F0
`1°
`stating in Section 2(a) of the Order that “‘[c]onfidential commercial information’ means records
`provided to the government by a_ submitter that arguably contain material exempt fro release under
`sclosure could .
`. Exemption 4 of the Freedom of Information Act, 5 U.S.C. 552(b)(4), because
`reasonably be expected to cause substantial competitive harm.” 52_ Fed. Reg. 2 ,781 (June 23,
`1987).
`-
`
`.-
`
`12
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`
`
`I
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`":3.
`
`3 Exécufivendrder 12,66i0
`further contends that Executive OrderNo. 12,600, 52 Fed. Reg 23,781 (June
`'
`In
`E3, 1987), prohibits the EEOC from disclosing the information at issue in th present suit.
`
`' -Plaintiff specifically cites Section 1 of the Order, which provides that
`
`

`
` .
`
`_
`_
`1
`Case 1:00-cv-02980-RJL Document 52 Filed 09/29/06 Page 13 of 17
`Case 1:00—cv—02980—RJL .Document 52 Filed 09/29/06 Page 13 f1?
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`Id.
`
`In fact, the EEOC has complied with the requirements of this Exec
`
`'ve ‘Order by
`
`publishing its predisclosure notification procedures. See 29 C.F.R. § 1610.19.
`
`11 accordance
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`with the EEOC ’ s procedures regardin.g the disclosure of confidential commerci
`
`
`
`information,
`
`-the Commission must notify submitters when it receives a FOIA request for 3 ch documents
`
`and must also provide predisclosure notice to the submitter to allow the submitter an
`
`I"
`
`=
`
`'3
`
`I opportunity to seek judicial review of its decision to release the information. See 29 C.F.R.
`
`-
`
`. §§ l6l0.l9(b)(3),
`
`In the instant action, however, there has been no FOIA request or any r quest at all. for
`
`In
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`plaintiff's information. As such, Executive Order 12,600 has no applicabili
`
`: to the present
`
`action and thus can provide plaintiff with no legal basis to challenge Section 83 ofthe EEOC’s
`
`'
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`
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`
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`.._..&_,_i_.,_..__...w_.,,.._.......ju_../.1“fi1u$:sz"'1'<v--.;=<4:-=-:.M.=-.':~4.lnno.__.
`
`ii
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`
`
`
`
`Compliance Manual.
`
`4.
`
`The Copyright Act
`
`Venetian Casino additionally alleges that Section 83 of the EEOC _s Compliance
`
`Manual violates the Copyright Act, 17 U.S.C. § 101, et seq. (2000). The Cop 'ght Act grants
`
`" owners of copyrights various exclusive rights to reproduce and distribute “opies of their
`
`copyrighted work, and further allows a copyright owner to sue persons w o violate their
`
`exclusive rights.‘ Specifically, the Act gives copyright owners
`
`(1) to
`the exclusive rights to do and to authorize any of the following:
`reproduce the copyrighted work in copies or ph'or1.0records; (2) to prepare
`derivative works based upon the copyrighted Work; (3) to distribute opies or
`phonorecords of the copyrighted work to the public by sale or other tr nsfer of
`
`13
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`

`
`
`
`l
`Case 1:00‘-cv-02980-RJL ooc'urnent 52 ‘Filed 09/29/06 Page 14 f1?
`Case 1:00-cv-02980-RJL Document 52 Filed 09/29/06 Page 14 of 17
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`(ownership, or by rental, lease, orlending; (4)111 the case of literary, musical,
`‘dramatic, and choreographic works, pantomimes, and motion pictures a (1 other
`-‘audiovisual works, to perform the copyrighted work publicly; (5) in the ase of
`literary, musical, dramatic, and choreographic works, pantomimes, and pi ’ torial,
`_ graphic, or sculptural works, including the individual images ofa motion icture
`I
`‘or other audiovisual work, to display the copyrighted work publicly; an (6) in
`‘the case of sound recordings, to perform the copyrightedwork pub cly by
`means of a digital audio transmission.
`
`_
`
`r
`
`:
`
`- 17. 13.3.0. § 106.
`
`
`
`Significantly, while the Copyright Act proscribes infringement of copyri
`
`ted material,
`
`-
`
`I
`
`'
`
`__ nothing in the Act requires confidential treatment by the government ofcopyri hted material.
`
`The Act provides an express remedy for alleged copyright Violations: a privat right ofaction
`
`for infringement. 17 U.S_.C. § 501. Nothing in the Act requires the establishme t ofparticular
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`-
`
`.
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`I
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`_-internal agencyprocedures. As such, the CopyrightAct affords Venetian Casin
`
`no legal basis
`
`‘to challenge the EEOC’s disclosure policy.
`
`5.
`
`The EEOC’s Disclosure Policy Is Neither Arbitrary Nor Cap iciaus, Nor Is
`It Otherwise Not In Accordance With The Law.
`
`Finally, plaintiffcontends that the EEOC’s disclosure policy is arbitra
`
`andcapricious
`
`'- _;and thus violative of the APA. The Court disagrees for the following reason .
`
`The APA provides that, in reviewing agency action, “the reviewing c urt shall [inter
`
`_alz'a] hold unlawful and set aside agency action, findings, and conclusions ound to be .
`
`.
`
`.
`
`'
`
`. arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with_law[.]” 5_
`
`_‘ -U.S.C. §706. Asthe SupremeCourthasnoted,whenCongress“hasexplici yleftagapfelt]
`
`an agency to fill, there is an express delegation to the agency to elucidate a Sp cific provisio
`
`'
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`_.
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`14
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`n-«mum
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`

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`Case 1:00-cv-02980-RJL Document 52 Filed 09/29/06 Page 15 of 17
`Case 1:00—cv—02980—RJL Document 52 Filed 09/29/06 Page 15 fl?
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`I
`
`'
`
`-:ofthe statute byregulation,” Chevron U.S.A., Inc. v. Natural Res. Def.’ Council, no, 467 U.S.
`
`' 1837, 843-44 (1984), and such a regulation “is- binding in the courts unles procedurally
`
`‘defective, arbitrary or capricious in substance, or manifestly contrary to the st tute,” United
`
`States v. Mead Corp., 533 U.S. 218, 227 (2001). The Supreme Court has fu
`
`
`
`_ -_deference ought to be afforded to agencies in implementing regulations. “[T]he
`
`ell-reasoned
`
`I views of the agencies implementing a statute ‘constitute a body of experienc and informed _
`
`. judgment to which courts and litigants may properly resort for guidance” Bra don v. Abbot,
`
`9 524 U.S. 624, 642(1998) (quotingSkidmore v. Swift& Co.,323U.S.134,139- 0 (1944)),and
`
`“[W]e have long recognized. that considerable Weight should be accorded t
`
`an executive
`
`departmenfs construction of a statutory scheme it is entrusted to administer,’
`
`
`
`Chevron, 467
`
`U.S. at 844; see also Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565 1980); Zenith
`
`"-2 Radio Corp. v. United States, 437 U.S. 443, 450 (1978). The proper meas
`
`e of deference
`
`-depends on numerous factors, including “the