108

(c)

(d)

prohibited by any statute other than
$1905 or by any agency regulation.

Where Exemption 6 is raised by the
submitter, you should determine whether
the data falls within that exemption,
as interpreted by the Supreme Court in
Department of the Air Force v. Rose,
425 U.S. 352 (1976).

Where 18 U.S.c. $1905 is either raised
by the submitter or possibly applicable,
you should make the determinations
requested in paragraph (b), above, and
in addition make the following deter-
minations:

(i) You should first determine whether
disclosure of the data by your
agency is contemplated by a
statute which would meet Chrysler's
"nexus" test, thus satisfying $1905's
"authorized by law" exception. An
example of such a statute may be
found at 42 U.S.C. $1306, which has
recently been held to authorize HEW
disclosure regulations in satisfaction
of $1905 under the Chrysler test. See
Cedars Nursing and Convalescent Center,
Inc. v. Aetna Life & Casualty Insurance Co.,
Civil No. 79-1416

(ii)

F. Supp.

(4) Finally, you should make all ultimate administrative disclosure determinations upon remand as follows:

(a) All data determined not to fall

within any FOIA exemption ("nonexempt
data") must be disclosed, regardless of
the applicability of $1905, as follows:
(i) If the nonexempt data does not fall
within $1905, as defined above, it
must be disclosed pursuant to the
statutory mandate imposed upon your
agency by the FOIA.

(ii)

If the nonexempt data does fall
within $1905, as defined above, it
must nonetheless be disclosed for
the reason that the FOIA itself

would "authorize" the disclosure, thus
rendering $1905 inapplicable.

(b) With respect to all data determined to fall
within an FOIA exemption, your disclosure
decisions should be made as follows:

110

(iii)

(iv)

All data found not to be prohibited
from disclosure under subparagraph
(i), above, and also found to fall
inside the substantive scope of $1905.
must be withheld, unless the agency
can identify either a "nexus" statute
or an agency regulation based upon a
"nexus" statute to "authorize"
disclosure, in which case the data may
be disclosed.

Any discretionary determination to
disclose FOIA exempt data should be
based upon a consideration in the
administrative record of both (1) the
harm likely to result from such
disclosure; and (2) other factors,
such as furthering the public interest
or advancing the mission of the agency,
which counterbalance such harm. In
this regard, please consult Part V
of the attached memorandum from the
Department's Office of Information
Law and Policy.

(5). After completing a new administrative record upon remand by making the ultimate disclosure determinations as requested in paragraph (4), above, and prior to disclosing any disputed data, please promptly contact the Department of Justice attorney assigned to the case who will both inform you regarding the status of any pending injunction prohibiting disclosure, and will also request your assistance in filing the new record before the district court.

I realize that the above approach may at first appear difficult to follow, but I am confident that upon careful analysis and implementation you will agree that adherence to such an approach on remand will provide the optimum basis for favorable judicial review of your agency's disclosure determinations. Daniel J. Metcalfe, 633-3183, and Vincent Garvey, 633-3442, of my staff will be available to answer any questions and to provide any assistance required with respect to this process. We look forward to a mutually cooperative relationship which will maximize our ability to defend all Government disclosure determinations in the wake of Chrysler.