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1665

Protection of Government Property—Disclosure of Confidential Government Information

Section 1905 of Title 18 prohibits the disclosure of various forms of confidential government information including trade secrets, processes, operations, style of work or apparatus by an employee of the United States. To establish a violation of this section, the government must prove that: (1) the defendant was an officer or employee of the United States; (2) the defendant disclosed confidential information; and (3) the defendant knew that the information so disclosed was confidential "in the sense that its disclosure is forbidden by agency official policy (or by regulation or law). United States v. Wallington, 889 F.2d 573, 578 (5th Cir. 1989).

There is a wide divergence of views as to the proper scope of this section and its relationship to the Freedom of Information Act. The problems have been exacerbated by the decision of the Supreme Court in Chrysler Corporation v. Brown, 441 U.S. 281 (1979), and the confusion engendered as to the propriety of releases made pursuant to the Freedom of Information Act of material that arguably could fall within the meaning of 18 U.S.C. § 1905 if the release of information in question was made in a good faith effort to comply with the Freedom of Information Act and the applicable regulations.

The Criminal Division does not intend to prevent or discourage prosecutions under any other applicable statutes, such as those prohibiting the theft or the unauthorized dissemination or possession of government information, see e.g., 18 U.S.C. §§ 641, 793, 794, or 50 U.S.C. § 783. Instead, the Division's purpose is to require that, in the circumstance described above, such cases are prosecuted under these other applicable statutes rather than under 18 U.S.C. § 1905.

This does not change the responsibility of Federal government employees to maintain the confidentiality of protected government information disclosed to them in the course of their employment.

[cited in USAM 9-66.400]