MEMORANDUM AND ORDER
This is an action under the Freedom of Information Act [FOIA], 5 U.S.C. § 552, to order the defendant, Civil Aeronautics Board [CAB], to produce a Board decision concerning the merger of Eastern Airlines, Inc., and Caribbean-Atlantic Airlines, Inc., and to enjoin the CAB from withholding future similar decisions until approved by the President. The plaintiff in this case, Aviation Consumer Action Project [ACAP], is a nonprofit organization incorporated in the District of Columbia and engaged in advocating, promoting and protecting the interests of aviation and general consumers. The defendant is the statutory authority for regulating United States commercial aviation, and under the Federal Aviation Act [FAA], 49 U.S.C. § 1301, et seq., is charged with the duty to issue decisions in connection with proposed mergers of domestic and foreign airlines. See 49 U.S.C. § 1461.
The CAB by decision dated August 3, 1972, disapproved the proposed merger of Eastern Airlines, Inc., and Caribbean-Atlantic Airlines, Inc. The President by letter dated October 19, 1972, and pursuant to statutory authority, 49 U.S.C. § 1461, returned the decision to the CAB and ordered further consideration by the Board. The CAB on October 30, 1972, published its August 3, 1972 decision, and then by a supplemental opinion dated February 2, 1973, again denied the proposed merger. The President by letter dated April 11, 1973, disapproved the Board's supplemental opinion and directed the CAB to approve the merger.
This cause of action arose when the plaintiff on February 23, 1973, requested access to the defendant's "new decision" in the Eastern-Caribbean merger case. The CAB by letter dated March 6, 1973, denied plaintiff's request. On April 19, 1973, after the President had acted upon the Board's decision, the document in question was made public.
Plaintiff asserts that the FOIA requires the decision of the Board to be made public as soon as it is submitted to the President. It seeks an order permanently enjoining the defendant from further withholding any decision of the CAB once transmitted to the President. Defendant contends that disclosure is prohibited by section 801 of the FAA, 49 U.S.C. § 1461, thereby rendering the document exempt from disclosure prior to such action pursuant to exemption 3 of the FOIA, 5 U.S.C. § 552(b)(3). The defendant argues in the alternative that the document is exempt from disclosure under exemption 5, 5 U.S.C. § 552(b)(5).
On July 13, 1973, this Court dismissed the action as moot. On appeal, defendant conceded that the action was not moot, and the case was remanded to this Court. Both parties moved for summary judgment over eleven months ago, but the case was held in abeyance pending settlement discussions, which ultimately proved unfruitful. At a status call on February 27, 1976, this Court stated it would proceed to decide the pending motions.
Defendant contends that the decisions of the Board are exempt from disclosure under 5 U.S.C. § 552(b)(3) which exempts from disclosure matters which are "specifically exempted from disclosure by statute," by virtue of 49 U.S.C. § 1461(a), which provides:
The issuance, denial, transfer, amendment, cancellation, suspension, or revocation of, and the terms, conditions, and limitations contained in, any certificate authorizing an air carrier to engage in overseas or foreign air transportation, or air transportation between places in the same Territory or possession, or any permit issuable to any foreign air carrier under section 1372 of this title, shall be subject to the approval of the President. Copies of all applications in respect to such certificates and permits shall be transmitted to the President by the Board before hearing thereon, and all decisions thereon by the Board shall be submitted to the President before publication thereof.
According to the defendant, only after the President approves or disapproves the Board's order and opinion is there a requirement that the decision be made public.
In analyzing a statute, courts first look to the language, and if unclear or ambiguous, they examine its legislative history and other judicial or agency decisions which might throw light on its meaning. In the instant case, the statute on its face is clear and unambiguous. Thus, it states that "copies of all applications in respect of such certificates and permits shall be transmitted to the President by the Board before hearing thereon, and all decisions thereon by the Board shall be submitted to the President before publication thereof." (emphasis added) Publication of a Board decision is prohibited before the decision is submitted to the President. There is no mention of extending the prohibition from the date of submission to the date of action taken by the President.
Defendant contends, however, that such an interpretation renders the prohibition of publication phrase a pointless provision. Of course, courts avoid statutory interpretations which would render the statute ineffective. See FTC v. Manager, Retail Credit Co., Miami Branch Office, 169 U.S. App. D.C. 271, 515 F.2d 988, 994 (1975). The defendant's argument, however, is premised on a reading of the statute which nowhere finds support in the legislative history. The Board argues that its interpretation "advances the purpose of the Act both by preventing untimely disclosure of matters which could adversely affect our foreign policy or national security and by permitting the President to be able to consider, free from extraneous matters, the foreign policy and national security ramifications of the Board's recommended decision." Def. Mem. at 5. A careful review of the House, Senate and Conference Reports, as well as the debates in both the House and the Senate, yields no support for the proposition that Congress intended the Board decision to remain secret until approved or disapproved by the President. The only references to section 801 in the long debate demonstrate only that Congress was concerned with the "manner" of submission to the President. See 83 Cong. Rec. 6636 (1938). The full impact of this concern is not provided by the reports or debates, but it can reasonably be inferred that Congress simply intended to afford the President the courtesy of the initial viewing of a decision he would eventually have to act on.
Untimely disclosure of foreign policy or national security matters can be prevented by agency classification of portions of its decision pursuant to Section 2(B) of Executive Order 11652,
or by an order of non-disclosure pursuant to 49 U.S.C. § 1504.
And insulation of the President from outside pressures is, as the Board Chairman recently recognized, more a theoretical argument than a practical reality.
In the face of a statute so unambiguously clear, the Court has little choice but to hold that it does not expressly preclude -- and in fact expressly permits -- publication of a Board decision promptly after its submission to the President.
Two arguments by the Board militating against such a holding require consideration. First, the defendant contends that Chicago & Southern Airlines v. Waterman S.S. Corp., 333 U.S. 103, 92 L. Ed. 568, 68 S. Ct. 431 (1948), precludes the interpretation made here. But the Waterman Court was not directly presented with an interpretation of section 1461(a), which is at issue here. Rather, the Court had to decide whether section 1006, 49 U.S.C. § 1486 (formerly 49 U.S.C. § 646), authorized judicial review of Presidential actions on Board decisions. The Court held that such review was unavailable, focusing primarily on the competence of the judiciary to review presidential decisions in the area of foreign affairs. See 333 U.S. at 111. The Court also held the Board decision unreviewable:
The statute would hardly have forbidden publication before submission if it had contemplated interposition of the courts at this intermediate stage. Nor could it have expected the courts to stay the President's hand after submission while they deliberate on the inchoate determination. The difficulty is manifest in this case. Review could not be sought until the order was made available, and at that time it had ceased to be merely the Board's tentative decision and had become one finalized by Presidential discretion.