Accord, Schechter v. Weinberger, 165 U.S.App.D.C. 236, 238, 506 F.2d 1275, 1277 (1974) (MacKinnon, J., dissenting) (citing his prior dissenting opinion in the same case, 162 U.S.App.D.C. 282, 498 F.2d 1015 (1974)). In California v. Weinberger, 505 F.2d 767 (1974), the Ninth Circuit reached a contrary result in regard to 42 U.S.C. § 1306 (a) on the ground that the general nondisclosure mandate constituted "words of congressional exemption," 505 F.2d, at 768, and thus the material was "specifically exempted . . . by statute." The Secretary merely had the authority "to relax the absolute prohibition established by Congress."
495 F.2d at 640-41. Accord Schecter v. Weinberger (1974) 165 U.S.App.D.C. 236, 506 F.2d 1275. But see California ex rel. Younger v. Weinberger (9th Cir. 1974) 505 F.2d 767. See generally Westinghouse Elect. Co. v. Schlesinger, supra, 542 F.2d at 1199-1202 and cases cited therein; Note, FOIA Exemption Three, supra, 76 Colum.L.Rev. at 1032-36.
The Ninth Circuit did not, however, share this view, concluding as did Judge MacKinnon of the District of Columbia Circuit, that Section 1306 exempted information concerning both individuals and institutions. People of the State of California v. Weinberger, 505 F.2d 767 (9th Cir. 1974); Schechter v. Weinberger, 498 F.2d 1015 (D.C. Cir. 1974); and although the legislative history does not unequivocally declare the scope of this provision, contemporaneous enactments and subsequent interpretations by the agency charged with its administration both reveal that the narrower meaning ascribed by the Third Circuit was probably not intended. In 1976 Congress amended 5 U.S.C. § 553(b)(3) to narrow the scope of this exemption by excluding statutes which permitted wholly discretionary nondisclosure.
The final Conference Committee Report expressed agreement with our view that 42 U.S.C. § 1306(a) does not fall within Exemption 3. See H.R.Rep. No. 1441 (Conf.), 94th Cong., 2d Sess. 25-26, reprinted in 1976 U.S. Code Cong. Admin.News 2183, 2244, 2260-2261. Following Stretch and other adverse decisions in the courts, see, e.g., Schechter v. Weinberger, 506 F.2d 1275 (D.C. Cir. 1974) (medical laboratory and hospital); Serchuk v. Weinberger, 493 F.2d 663 (5th Cir. 1974); but see People of the State of California v. Weinberger, 505 F.2d 767 (9th Cir. 1974), the Secretary engaged in formal rulemaking under the Administrative Procedures Act, 5 U.S.C. § 553 (1982), and promulgated the regulation at issue here. In the period following its promulgation, a number of hospitals unsuccessfully challenged the rule.
The Congress, however, has not repealed § 1905. This fact, under the reasoning of Judge MacKinnon in Schechter, note 28, which was adopted later in People of State of California v. Weinberger (9th Cir. 1974), 505 F.2d 767, 768, and received final approval in Robertson, would seem fairly conclusive evidence of legislative intent not to remove § 1905 as a prohibition against disclosure, qualifying as such under Exemption 3. In any event, in the absence of actual repeal, it is not, under Chief Justice Burger's language in Robertson, the function of courts to do what Congress has failed to do.
Section 1106 of the Social Security Act, 42 U.S.C. § 1306. The Ninth Circuit Court of Appeals, however, had reached a different conclusion in California v. Weinberger, 505 F.2d 767 (9th Cir. 1974). That court regarded the language "specifically exempted from disclosure by statute" in Exemption 3 as requiring only that a restriction on disclosure be explicit in the facial language of the statute, rather than being inferable from it.
This notion is supported by decisional law in this State (People v Morales, 97 Misc.2d 733) and interpretations of the Federal law (US Code, tit 5, § 552, subd [b], par [3]), even prior to its 1976 amendment. (FAA Administrator v Robertson, supra; People v Weinberger, 351 F. Supp. 733, affd 505 F.2d 767.) Thus, both rationale stated for the advisory opinion as to the ground of specific exemption by statute appear to be in conflict with decisional law.