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
`the district court’s grant of summary
`We review
`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).
`
`that, should a Commission
`Venetian next argues
`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
`
`

`
`competitive harm.
`
`14
`
`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
`
`is
`the Commission’s policy
`Venetian next argues
`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.
`
` Whether
`judicial review.
`is not ripe for
`This claim
`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