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AVIATION CONSUMER ACTION PROJECT v. CAB

August 19, 1976

AVIATION CONSUMER ACTION PROJECT, Plaintiff
v.
CIVIL AERONAUTICS BOARD, Defendant



The opinion of the court was delivered by: JONES

 WILLIAM B. JONES, Chief United States District Judge.

 On May 10, 1976, this Court entered a Memorandum and Order in this action rejecting defendant's arguments that its decisions made pursuant to 49 U.S.C. § 1461 were not subject to disclosure under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), until their approval or disapproval by the President. Specifically, the Court enjoined defendant:

 
from withholding from public inspection and copying all future decisions or portions of future decisions made by defendant pursuant to 49 U.S.C. § 1461, at any time immediately after those decisions are physically transmitted to the President, unless the withholding is validly premised on a statutory provision or Executive Order other than 49 U.S.C. § 1461(a).

 Subsequent to the issuance of the Court's May 10, 1976 Memorandum and Order, two events have occurred which have given rise to cross-motions by the parties.

 First, on June 10, 1976, the President issued Executive Order No. 11920, effective July 11, 1976, which set forth, inter alia, a procedure for temporary nondisclosure of section 1461 decisions "in order to allow for consideration of appropriate action under Executive Order No. 11652, *fn1" as amended." Exec. Order 11920, § 1(b). The Order directs the Board to withhold from public disclosure a section 1461 decision "for five days after submission to the President." Id. Within that five day period, the Order provides for a review of the section 1461 decision by the Secretary of State, the Secretary of Defense, and the Assistant to the President for National Security Affairs to determine whether any action under Executive Order No. 11652 should be taken, to complete such review within the five day period, and to inform the Board of any classification action to be taken before publication. On and after the sixth day after submission to the President, the Board is authorized to disclose the unclassified portions of the section 1461 decision. Id., § 1 (d), (e).

 The second event leading to the cross-motions was the promulgation by the defendant of regulations governing publication of section 1461 decisions subsequent to the five day procedure now required under Executive Order No. 11920. Essentially, the new regulation provides that each decision will be released to the public "as promptly as possible but no later than the tenth working day following submission of such decision to the President." 14 C.F.R. § 399.101, as amended July 9, 1976. The regulation specifically contemplates that the decision will not be released, in any form, until it has been "print[ed] and process[ed] for publication" on a mass distribution basis. See id. ; Schultz Aff. (II), para. 6. Thus, if one person were to appear at the Board on the sixth day after submission of a section 1461 decision to the President to request a copy of the unclassified portions of that decision, he would be denied access to the decision until it were printed and processed for publication on a mass distribution basis.

 Defendant initially moved the Court to vacate the May 10, 1976 Order on the ground that the controversy had become moot in light of the promulgation of Executive Order No. 11920. Plaintiff thereafter moved to compel compliance with the Court's Order, citing several instances where interested persons had been denied access to particular decisions for periods of time ranging from four to ten or more days. See generally Affs. to Pl's Motion to Compel Compliance. A hearing was held on the cross-motions on July 15, 1976, at which the Court orally denied defendant's motion, *fn2" and requested further briefing on the question of the validity of the newly promulgated Board regulation. Post-hearing memoranda have been submitted to the Court, and plaintiff's motion is now ripe for decision.

 Plaintiff's motion raises two distinct issues. First, the Court must determine whether Executive Order No. 11920 violates the FOIA and the Court's Order by precluding public release of a section 1461 decision for five days after it has been submitted to the President. Second, the Court must determine whether the defendant's new regulation violates the FOIA and the Court's Order by precluding public release of a section 1461 decision to any person who requests access until it is printed and processed for publication on a mass distribution basis.

 EXECUTIVE ORDER NO. 11920

 In rendering its May 10, 1976 decision, the Court specifically noted that a section 1461 decision might be withheld even after submission to the President if an order of nondisclosure is entered by the Board pursuant to 49 U.S.C. § 1504. Section 1504 provides for such an order upon written objection by "any person" if "disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public." At the July 15, 1976 hearing on the cross-motions, plaintiff's counsel agreed that the President comes within the class of "any person," but argued that neither the Board nor the President had invoked section 1504 as a basis for the Executive Order. *fn3"

 In effect, the Executive Order acts as a "written objection" by the President to the disclosure of any information in any section 1461 decision until the five day period for review has been undertaken. By issuance of its new regulation on July 9, 1976, the Board in effect accepted that such a delay in disclosure was necessary to enable the President to effect his constitutional duties, and that earlier disclosure is not required in the public interest. Although not expressly relying upon section 1504, it is clear that defendant would be authorized and within its discretion in doing so, and beyond that determination this Court is without authority to tread. See Administrator, Federal Aviation Administration v. Robertson, 422 U.S. 255, 45 L. Ed. 2d 164, 95 S. Ct. 2140 (1975). It would be purposeless to require both the President and the Board to re-promulgate for cosmetic purposes actions which clearly have a basis in law, and therefore the Court finds the Executive Order to be consonant with the FOIA and the Court's May 10, 1976 Order.

 THE NEW BOARD REGULATION

 Defendant first asserts that the FOIA authorizes it to withhold section 1461 decisions for a period of ten working days, premising its contention on subsection (a)(6)(A) of the Act, which requires that an agency determine within ten days whether to publicly release requested documents. Simply put, this argument stands the FOIA on its head. Subsection (c) specifically states that nothing in section 552 "authorize[s] withholding of information or limit[s] the availability of records to the public, except as specifically stated in this section." Subsection (a)(6)(A) certainly does not "specifically state" that otherwise nonexempt records may be withheld for ten days. Indeed, subsection (a)(6)(C) states that once it 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 ...


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