is determined that the agency will comply with a request, "the records shall be made promptly available." And subsection (a)(3) requires that any records not otherwise exempt be made "promptly available to any person." It has been determined in this litigation that section 1461 decisions are not exempt from disclosure under the Act; there is no other determination to be made regarding disclosure, save under the procedures outlined in Executive Order No. 11920. The FOIA, therefore, mandates that the records be made "promptly available," following the five day review period contemplated by the Executive Order, and does not provide a statutory basis for withholding the decisions for an additional five working days.
There remains but one question: whether the new regulation provides for making records "promptly available to any person" as required by subsection (a)(3). Essentially, defendant argues that "promptly available" is satisfied by the short delay -- estimated at between 24 hours and five working days -- necessary to print and process the decision for publication on a mass distribution basis. If the Board is not permitted the time necessary to print sufficient copies of its decision so that it may be distributed simultaneously to all persons interested in the decision, defendant argues, those who become aware of the decision before others "through fortuity or sophistication" will be given unfair advantage over others in the stock or other financial markets. Schultz Aff. (II), para. 6. Defendant admits, however, both that "no method of distribution can result in all interested persons learning of an agency decision at the exact same time," and that its own distribution system provides those persons who are able to physically obtain a copy at the Board's offices with earlier access than those persons who must rely on the mails for distribution. Id.
Whether the purpose for which the regulation has been instituted is wise need not be decided, because there is simply no basis in the FOIA for its use as a basis for otherwise needless delay in making a decision available to the public. See Merrill v. Federal Open Market Committee of the Federal Reserve System, 413 F. Sup. 494, 506 (D.D.C. 1976) (that prompt release of documents would be injurious to agency's functions, if documents are not within exemption, cannot support delay in release). The FOIA specifically states that a requested record not otherwise exempt shall be made promptly available "to any person"; it does not state that a requestor need wait until the agency determines that enough copies are available to satisfy all prospective requestors beside himself. Nor does it state that a record is not releasable until it has been printed and processed for publication on a mass distribution basis. Indeed, the FOIA apparently contemplates that only the release of subsection (a)(2) records may be delayed for publication purposes, and defendant has consistently argued that section 1461 decisions do not fall within subsection (a)(2). See Merrill, supra at 505. When "any person" requests access to a section 1461 decision, it must be made "promptly available" to him under subsection (a)(3), regardless of whether other persons have the same ability to gain access at substantially the same time.
Difficult questions arise, however, as to how quickly copies of a section 1461 decision must be made available. It is clear that, within the circumstances of this case "promptly" cannot always mean "immediately," a physical impossibility where many persons seek immediate access to one document.
Additionally, Congress has, as a rule, been more concerned with undue or inordinate delay than with delay attendant to normal reproduction process. See H. Rep. 93-876, 93d Cong. 2d Sess. 6 (1974); S. Rep. 93-854, 93d Cong. 2d Sess. 23-28 (1974). No reason (other than that rejected above) has been advanced to this Court, however, why defendant cannot provide one copy of its decision for public inspection and copying at a public place within a reasonable time necessary to prepare a releasable copy, refer requestors to that copy until the decision is printed and processed for publication on a mass distribution basis, and inform requestors that upon completion of that process an individual copy will either be mailed or made available to them. Defendant argues that this would result in inequity to those unable personally to appear at the Board office to review the one public copy. But the disparity in availability in the vast majority of instances, if defendant's representatives are correct that most decisions are released within a 24-hour period on a mass distribution basis, would be no greater than that already experienced under the Board regulation, whereby persons restricted to reliance on the mail must await delivery for a period of one or more days. If a requestor appears at the office while another requestor is reviewing or copying the only available copy, simply informing him that such is the case and that he must await completion of the prior requestor's review, or alternatively await publication of the decision, would not violate the "promptly available" requirement.
Defendant's motion to vacate the Court's order has already been denied; nothing has been brought to the attention of the Court to alter that decision; and therefore no further action will be taken. Plaintiff's motion is without merit insofar as it seeks invalidation of Executive Order No. 11920. With regard to the new regulation of the Board, however, insofar as the regulation permits withholding of a document beyond the time when it can be made "promptly available," as that term has been discussed in the foregoing memorandum, it is invalid. Plaintiff's motion to compel compliance will be granted to the extent contemplated by the foregoing memorandum.
In light of the foregoing, it is this 19th day of August, 1976,
ORDERED that plaintiff's motion to compel compliance with the Court's Order be and the same hereby is granted in part and denied in part; and it is further
ORDERED that defendant is enjoined from implementing 14 C.F.R. § 399.101, as amended July 9, 1976, insofar as it permits withholding of a document beyond the time when it can be made promptly available to a person requesting access to it.