Robertson v. Butterfield

• Decision Date: 09 May 1974
• Docket Number: No. 72-2186.,72-2186.
• Citation: 498 F.2d 1031
• Parties: Reuben B. ROBERTSON, III, et al. v. Alexander P. BUTTERFIELD, Administrator, Federal Aviation Administration, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

498 F.2d 1031 (1974)

Reuben B. ROBERTSON, III, et al. v. Alexander P. BUTTERFIELD, Administrator, Federal Aviation Administration, et al., Appellants.

No. 72-2186.

United States Court of Appeals, District of Columbia Circuit.

Argued July 26, 1973.

Decided May 9, 1974.

Rehearing Denied July 11, 1974.

Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, Robert E. Kopp and Thomas G. Wilson, Attys., Dept. of Justice, were on the brief for appellants.

Alan B. Morrison and Ronald L. Plesser, Washington, D. C., were on the brief for appellees.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and ROBB, Circuit Judge.

FAHY, Senior Circuit Judge.

The appeal raises the question whether the Federal Aviation Administration is obligated under the Freedom of Information Act, 5 U.S.C. § 552, to disclose to appellees, plaintiffs in the District Court, certain reports in the files of the Administration. These reports, compiled under what is known as the System Worthiness Analysis Program (SWAP), consist of analyses made by employees of the Administration of the operation and maintenance performance of airlines, under the responsibility of the Administration to regulate the safety of civil aeronautics.¹ Special teams of experienced inspectors make periodic visitations of airlines to inspect and analyze their safety and maintenance operations. The findings and recommendations for corrective action are disclosed to the airline management in a meeting of Administration and airline personnel. A final SWAP report is thereafter prepared, containing the findings and recommendations of the inspection team. Appellees requested but were denied access to those reports for the year 1969. While an intra-agency appeal was pending the Air Transport Association, on behalf of numerous airlines which are members, requested that the Administrator issue an order under section 1104 of the Federal Aviation Act of 1958² withholding SWAP reports from the public. The Administrator, complying, ruled that all SWAP reports, not only those requested by appellees, but all in existence and thereafter to be complied, should be withheld from public disclosure because "disclosure of the information contained therein would adversely affect the interests of the airline being investigated and is not required in the interest of the public."

I

Appellees' suit in the District Court for injunctive relief under the Information Act ensued. The court granted their motion for summary judgment as to Count I of the Complaint, which raised the issue as to the SWAP reports, and ordered the Administrator to release the reports, holding, "the documents sought by plaintiffs in Count I are, as a matter of law, public and non-exempt within the meaning of 5 United States Code 552. . . ." All other counts were dismissed.³

No other explanation of the decision appears, but it is clear from the above posture of the case that Exemption (3) of the Information Act, relied upon by appellants in the District Court, was held not to apply. That exemption protects from disclosure matters "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). We are accordingly faced with the question whether Exemption (3), considered with the Administrator's action under section 1104 to which we have referred, protects the reports from disclosure as matters "specifically exempted from disclosure by statute." We think not, for reasons now explained.

II

This court has continued to adhere to the position that exemptions of the Information Act are to be narrowly construed. Vaughn v. Rosen, 157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974); Cuneo v. Schlesinger, 157 U.S.App.D.C. 368, 484 F.2d 1086 (1973). The ordinary meaning of the language of Exemption (3) is that the statute therein referred to must itself specify the documents or categories of documents it authorizes to be withheld from public scrutiny. Section 1104 of the Aviation Act fails to do this. It is, rather, a congressional delegation to the Board or Administrator of the Aviation Authority to weigh whether a person objecting to disclosure would be adversely affected by it, and whether, even if so affected, disclosure nevertheless "is not required in the interest of the public."

In EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), the Supreme Court considered a specific exemption by statute, Exemption (1) of the Information Act itself, which exempts matters "specifically required by Executive Order to be kept secret in the interest of the national defense or foreign policy." 5 U.S.C. § 552(b)(1). The documents sought to be disclosed had been classified as secret pursuant to Executive Order 10501.⁴ Exemption (1) was construed to be a specific reference by Congress itself to a definite class of documents which were not to be disclosed. 410 U.S. at 83. Their disclosure accordingly was not required. No particular class of documents as such are referred to in section 1104 of the Aviation Act. The Administrator ordered the SWAP reports not to be disclosed although they did not fall within any congressionally specified statutory category. It would be unacceptable to hold that his conclusion that disclosure of any and all of the reports requested⁵ would adversely affect the interests of each airline covered, and is not required "in the interests of the public," is a specific exemption by section 1104. Not only would such an interpretation overstrain the language of Congress in Exemption (3), see Cutler et al. v. C.A.B., C.A. No. 74-8, 722 F.Supp. 375 (D.D.C., 1974), it would also be at odds with the history and purpose of the Information Act considered in its relationship to section 1104, a matter further to be considered.

III.

A. Before doing so, we note appellants' reliance upon the Attorney General's Memorandum On the Public Information Section of the Administrative Procedure Act (June, 1967), which contains the following:

Explaining exemption (3) the House Report, at page 10, notes that there are "nearly 100 statutes or parts of statutes which restrict public access to specific Government records. These would not be modified by the public records provisions of S.1160."⁶

Appellants analogize the Administrator's authority under section 1104 with that of the Atomic Energy Commission under 42 U.S.C. §§ 2161-2166 (1970). In this connection appellants refer to Mink, supra, 410 U.S. at 77-78 n.4, where it is stated that material within those provisions might come within Exemption (3). Those provisions, however, refer to "Restricted Data"; so, too, does 42 U.S.C. § 2014(y), also mentioned by appellants. We consider such references to be in contrast with the broad discretionary authority conferred by section 1104. The latter mentions no particular category of information. It applies generally to any document filed pursuant to the Aviation Act which the Board or Administrator decides to bring within the non-disclosure provisions. The Administrator's decision in this case merely repeated the congressional language and offered no supporting explanation.

Davis, Administrative Law, section 3A.18 (1970 Supp.) refers to Exemption (3) in its application vel non to the non-disclosure power of the Security and Exchange Commission, somewhat like that available to the present Administrator. Disclosure is available "only when in its the S.E.C.'s judgment a disclosure of such information is in the public interest." Professor Davis states that this language "perhaps" serves specifically to exempt "whatever information the Commission, acting within the power granted, decides to withhold." Id. The statute, 15 U.S.C. § 78x, is subject to the same analysis applicable to 42 U.S.C. §§ 2161-2166, supra. Section 78x(a) reads:

Nothing in this chapter shall be construed to require . . . the revealing of trade secrets or processes in any application, report or document filed with the Commission under this chapter. (Emphasis added.)

It goes on to allow the Commission some discretion, to decide which trade secrets or processes should be disclosed in the "public interest."

B. Analyzing somewhat further the legislative history, the House Report accompanying the Information Act lists three major purposes of the legislation, including the following:

The Act sets up workable standards for the categories of records which may be exempt from public disclosure, replacing the vague phrases "good cause found," "in the public interest," and "internal management" with specific definitions of information which may be withheld. (Emphasis added.)

H.R.Rep. No. 1497, 89th Cong., 2d Sess. at 2 (1966), U.S.Code Cong. & Admin.News 1966, p. 2419.

As we have seen, the previously enacted section 1104 of the Aviation Act vests in the Board or Administrator of the Federal Aviation Authority the discretion to judge "when . . . a disclosure of such information would adversely affect the interests of such person requesting nondisclosure and is not required in the interest of the public", thus containing the broad vagueness which, according to the House Report, the Information Act was designed to remove from the public disclosure section of the Administrative Procedure Act. To hold that section 1104 remained unaffected by Exemption (3) we think would contradict a stated purpose of the Information Act and violate a primary rule of statutory interpretation. Reliance Electric Co. v. Emerson Electric Co., 404 U.S. 418, 424, 92 S.Ct. 596, 30 L.Ed.2d 575 (1972).

During the debate of the Information Act on the floor of the House a question arose with respect to the application of Exemption (3) to information supplied to the Bureau of Census under the statutory provisions requiring such information to remain confidential. 13 U.S.C. § 9 (1970). The Chairman of the House subcommittee in charge of the legislation stated that the census information was within Exemption (3) as material ...