FAA ADMINISTRATOR v. ROBERTSON

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Argument of Freidman

Chief Justice Warren E. Burger: We'll hear arguments next in 74-450, Federal Aviation Administration against Robertson.

Mr. Freidman, I think you may begin whenever you're ready.

Mr. Freidman: Mr. Chief Justice, may it please the Court.

Exemption three to the Freedom of Information Act covers matters that are specifically exempted from disclosure by statute.

The question in this case which is here on a writ of certiorari to the Court of Appeals for the District of Columbia Circuit is whether by this provision Congress contended to continue in effect the large number of prior and existing federal statutes which provided for non disclosure of Government material on various terms and conditions.

Rather than, as the Court of Appeals held is limited to particular statutes would specify the particular material involved and which provide a more specific standard for non disclosure than the public interest.

The case involves certain documents produced by the Federal Aviation Administration which it does pursuant to its Systems Worthiness Analysis Program which I shall refer to by its commonly accepted acronym of (SCRAP).

What these reports are, are the result of a program that the Federal Aviation Administration conducts involving a detailed study and analysis of air carrier systems.

They study --

Justice Potter Stewart: SWAP not SCRAP --

Mr. Freidman: I'm sorry Mr. Justice, SWAP, I apologize.

Justice Potter Stewart: SCRAP is something else.

Mr. Freidman: SCRAP is another case, yes.

SWAP.

It involves a detailed study and analysis of the operations and the maintenance programs of the carriers to ascertain whether the carriers own programs are functioning properly.

The purpose of the program is to try to uncover before they mature anything that might lead to an unsafe operation.

A major aspect of this program is free and frank discussion between the team of FAA people, the SWAP team that conducts the investigation and the management of the carrier.

They discuss the thing, they analyze the problem, they point out the difficulties.

In an affidavit on filing this case that is uncontroverted by Mr. Shaffer, the administrator of FAA which is set forth to pages 40 to 42 of the record.

He explains how this thing operates and the importance of the informal frank discussion.

He said the -- this is page 40, paragraph six, “A SWAP investigative team works in close cooperation with airline management, defined any area of maintenance, operations, management or overall performance which needs improvement.

The system depends upon the frank and full disclosure of the airline.

It also points out that the information investigated includes financial and operational matters which would not customarily be released to the public and that much of the material is of the nature which would not be disclosed to competitors.”

And then in paragraph number 12 on page 41, he says, “The SWAP Program operates with the understanding between the airlines and the FAA that the information will not be disclosed to the public.”

At the end of the SWAP investigation which may take anywhere from two weeks to much longer and as conducted by team of four or five people, a final report is made in which detailed findings are made, the problems of the carrier analyze and recommendations are proposed.

Now, neither the report nor the informational findings in it is made available to the public although as Mr. Shaffer said at page 42 of the record in his affidavit, the findings made by the SCRAP Team are frequently disclosed to the carrier management in order to enable that it'll be the kind of frank discussion that is necessary and to enable the carrier to take corrective action.

The respondent in this case, Mr. Robertson is connected with the Center for the Study of Responsive Law and as director of the Aviation Consumer Action Product -- Project.

In December of 1970, this group was conducting a study of airline safety and they requested the Federal Aviation Administration to make available to them all of the SWAP Reports for 1969.

The administration refused to do this.

They file a petition for rehearing and while a petition for rehearing was pending, the air carrier industry appearing for the Air Transport Association, its trade association requested the administrator under Section 1104 of the Federal Aviation Act not to disclose this material.

Section 1104 which is set out at pages three to four of our brief provides that in response to a written objection to disclosure of either information contained in an application report or document filed with either the Civil Aeronautics Board of the Federal Aviation Administration and I will refer in this case only to the administration or information that the administration is obtained pursuant to the act when such a written objection is made, the administrator shall order the information withheld from public disclosure when in his judgment a disclosure of the information would adversely affect the interest of the person seeking non disclosure and is not required in the public interest.

The letter by which the Air Transport Association requested the administration to keep this information confidential as set forth at pages 112 to 113 of the record and in that letter, they'd point out that the information which they give to the SWAP Teams during the investigation voluntarily is not required to be disclosed by any regulation of the Federal Aviation Administration and they said, “If public disclosure of the SWAP reports were made, the interest of aviation safety would be endangered of being subordinated in some degree to legal considerations and the presentation of information to the FAA.

They also pointed out that the present informal practice of frank and free discussion said encourages a spirit of openness on the part of airline management which is vital to the promotion of aviation safety.

On the basis filing this submission, the administrator made a determination under Section 1104 which is set forth at page 115 of the record deciding not to make public to SWAP Reports.

He made the determination in the language of the statute that disclosure of the information in the reports would adversely affect the interest of the airline being investigated and is not required in the public interest.

Following this determination, the FAA denied reconsideration of the respondent's request for the SWAP Reports, the suit was brought, the District Court ordered disclosure of the SWAP reports and a divided Court of Appeals affirmed.

The majority held two things basically.

First, it held that the reference in Section 1104, the material specifically exempted from disclosure by statute was only applicable if the statute itself specify the documents or categories of documents and authorizes to be withheld and it said that 1104 didn't come within this because it didn't specify any particular class of documents.

Secondly, it said that the standard in Section 1104 of the public interest was not a specific exemption by statute within the meaning of Exemption 3.

There was a dissenting opinion by Judge Rob in which he referred to the legislative history which I will elude to shortly, pointing out that the strong congressional intent in Exemption 3 to continue the effectiveness of this large number of statutes and he said, he didn't believe in the light of that that Exemption 3 could be viewed as repealing by implication the specific provisions of Section 1104.

Now, the Freedom of Information Act was enacted because of the satisfaction with the way the old public information section of the Administrative Procedure Act had worked.

There was considerable feeling in Congress and elsewhere that under the statute, the public was not being furnished the information that was entitled to received and one serious floor as this Court pointed out in its Mink opinion two terms ago was one of the provisions of that statute which permitted to the withholding from disclosure of material relating to any function of the United States requiring secrecy in the public interest and it was felt that this standard which was a general standard covering the whole gambit of Government operation just didn't provide any guidelines that Government officials could easily say, “We think it's not in the public interest to disclose and then keep it secret.”

The response Congress gave in the Freedom of Information Act was generally, generally to open up all identifiable Government records to disclosure but subject to nine specific exemptions.

And of course, the nine specific exemptions dealing with various areas reflected a recognition that the effective operation of Government requires in some instances that material be kept confidential in order to permit the Government to function properly.

Justice Harry A. Blackmun: We have here only Exemption 3 under consideration.

Mr. Freidman: Only Exemption 3 Mr. Justice.

Justice Harry A. Blackmun: And if you should not prevail on that when you still may -- when you're case underwent or any other of the exemptions.

Mr. Freidman: We may Mr. Justice because the exemption sometimes overlap but we think on this issue, we think that we are entitled to prevail under Exemption 3.

Now of the nine exemptions that Congress created, seven of them contain their own standards, two of them however do not; Exemption 3 and Exemption 1 which this Court had before in the Mink case which referred to matter specifically required by executive order to be kept confidential.

The two provisions, these were Exemption 3 and Exemption 1 in effect incorporate by reference other standards of confidentiality which reflected in one case in an executive order and the other case in statutes.

Now, at the time that the Freedom of Information Act was enacted in 1966 therein existence a large number of Government statutes, the numbers are uncertain, there are some references in the legislative history to 80, 78, almost a hundred but these are all statutes in which Congress specifically dealing with a particular problem had concluded that Government information should be kept confidential.

The terms of these statutes vary.

In some instances, they provided generally that the material was to be made public unless it was determined by the administrative agency or the Government official who should be kept confidential as in this case, other instances there are for situations in which the statute provided that the material was to be generally kept confidential unless the Government official decided that it should be made public.

The terms varied also whether it dealt with the general categories of material or dealt with specific material and it also varied with respect to the basis upon which the Government official would act.

Now, we think the legislative history shows in the background and the Freedom of Information Act shows that when Congress in Exemption 3 referred to material specifically exempted from disclosure by statute, what it meant to do was to preserve intact all of these existing statutes.

It used we think the words specifically exempted, not in terms that the statute specify the particular documents to be withheld as the Court of Appeals held as our opponents argue but that the statute, it was the statute that specified non disclosure in terms rather than merely implying it that is a statute which would be relied upon because of the public policy reflected in the statute as by implication sanctioning non disclosure.

The purpose -- the purpose of Exemption 3 and the purpose of the whole Freedom of Information Act was to eliminate the prior practice under the Administrative Procedure Act by which all Government officials could just keep anything they wanted secret on a simple decision that it was required in the public interest.

We have set forth considerable detail in our brief the legislative history of Exemption 3 and each shows that over a period of eight years during which Congress considered a number of bills containing this identical language that the Congress was aware that there are large number of these statutes and that Congress intended not to change them, to keep them intact, to leave them as they were.

Let me just refer to two items which I think show this rather clearly.

In the 1966 House Committee Report which we've quoted at page 18 of our brief which was the report on the bill actually enacted.

The committee stated that there are nearly 100 statutes or parts of statutes which restrict public access to specific Government records.

This would not be modified by the public records provision of S. 1160 which is the bill ultimately enacted.

Then over on page 19 as a statement by Senator Hruska during the 1963 hearings at an earlier phase of the consideration of these litigation, I'm sorry Senator Long, I stand corrected who was one of the sponsors and proponents of the Bill and what he said was, “Statutes which curtail the availability of information to the public are not intended to be affected by the enactment of this bill and two sentences after than, it should be made clear that this bill in no way limits statutes specifically written with the congressional intent of curtailing the flow of information as a supplement necessary to the proper functioning of certain agencies.”

In other words, what Congress was doing here was it was deferring to the judgment of earlier legislative bodies made as result of specific consideration of the particular problem, it was deferring to their judgment that in certain situations that was to be non disclosure.

It did not intend, we think very clearly by Exemption 3 to repeal by implication any of these existing statutes.

We think the case does closely parallels the Mink case where in the Mink case it was argued that because the executive order that was relied on is the basis for classifying the material secret and top secret did not itself refer to the particular documents the claim was they are not covered by Exemption 1 that this Court rejected it.

Similarly it seems to us here the fact that the particular statutes may not have been as detailed and specificity may vary considerably that's no basis for saying that Congress didn't intend them to be covered or the Congress intended in each instance for the Court considering this and I add for the administrative official having to make the decision whether to disclose for him to try to figure out whether the particular statute was specific enough to bring it within the coverage of Exemption 3.

Congress was not making that kind of a determination.

Congress was adapting all of these many, many statues that have previously been enacted and was leading him as they worth, it said in effect, “We will accept what other Congresses have concluded when they specifically dealt with a particular problem.”

Now, our opponents tell us it's inconsistent with the determination that Congress made in the Freedom of Information Act to eliminate the old public interest standard under the Administrative Procedure Act while at the same time to have intended to permit the nondisclosure material under the standard in Section 1104 which refers to the public interest.

We think there's a very significant difference between it because in 1104, Congress made a specific determination with respect to the circumstances under which the material of the Federal Aviation Administration was to be disclosed.

They weren't saying, this wasn't part of a program under which everybody could disclose. Congress made the determination way back in 1938 when it first enacted the Civil Aeronautics Act that when there was a protest to material in the hands of the Federal Aviation Administration, that it was up to the administrator with his expert judgment to balance on the one hand the entry that would result to the people protesting the documents.

That is the adverse affect upon the people who were protesting and on the other hand, the public interest in disclosure.

It left it to the administrator to make that balance.

That is Congress and this statue specifically focused on this problem.

And we --

Justice William H. Rehnquist: Prior to the Freedom of Information Act to the 1966, the Federal Aviation Administrator could've withheld either under the standard of the old Freedom of Information Act or under the 1938 Statute, is that correct?

Mr. Freidman: That is correct.

He may have had to make a somewhat different determination under the old Freedom of Information Act, I'm sorry under the old administrative procedure but he certainly could've withheld under this statute and now would've been no basis on which I don't think that could've been obtained prior to the Freedom of Information Act.

So, the basic argument of course is that somehow in Exemption 3, when they spoke of a material specifically exempted from disclosure and statue, they've somehow by implication repeal the provision of 1104 and we don't think that's what Congress intended, we think that Congress intended to Continuality Statutes Act.

Justice Potter Stewart: I think you're twisting your opponent's argument a little bit and the argument is that the enactment of the Freedom of Information Act is a whole cert to repeal 1104 and then Exemption 3 doesn't cover it.

Mr. Freidman: Well, I don't think so Mr. Justice.

I don't understand them to say that the enactment of the entire statute repeal 1104.

Justice Potter Stewart: Well that 1104 is not under any of the exemptions and explicitly not under Exemption 3 because, well you know the argument.

Mr. Freidman: Yeah.

Well and that --

Justice Potter Stewart: If not the statute that is specific in saying what shall --

Mr. Freidman: Yeah, but my only point was Mr. Justice if 1104 is not under Exemption 3 and if we don't know whether it would be covered by the other exemptions, the practical effect of that is that at least as far as 1104 is concerned, the administrator can no longer rely on that provision.

It seems to me as a basis for keeping it confidential and that's the provision that Congress provided almost 40 years ago and we therefore think that the administrator correctly in this case that the SWAP Reports are materials specifically exempted from disclosure under Exemption 3 and that therefore the respondents are not entitled to obtain.

Thank you.

Chief Justice Warren E. Burger: Very well Mr. Freidman.

Mr. Morrison.

Argument of Alan B. Morrison

Mr. Alan B. Morrison: Mr. Chief Justice, may it please the Court.

This matter began in the summer of 1970 when the respondents and others sought to learn more about aviation safety in this country.

And they sought access to a number of documents under the Freedom of Information Act including the SWAP Reports which are the only documents that still at issue in this case.

Chief Justice Warren E. Burger: Mr. Morrison, was this inquiry prompted by some formal study of some sort I couldn't quite bring that --

Mr. Alan B. Morrison: Mr. Robertson and Mr. Simonelli were both engaged in an ongoing study of the aviation as to Mr. Robertson as still engage and that Mr. Simonelli is a student and now and has left that particular study which we were just working on for that particular summer but they are engaged in the continuing ongoing surveillance through the Aviation Consumer Action Project of trying to find out whether all aspects of the aviation industry, that is the safety aspects which are handled by the FAA which is before us in this case and whether the economic aspects handled by the CAB or designed in the way and operated in the way to benefit the public and consumers at large.

Chief Justice Warren E. Burger: Or in private did I see.

Mr. Alan B. Morrison: That's correct Your Honor, that's correct.

Justice William J. Brennan: Would any citizen have the same right to bring their suit?

Mr. Alan B. Morrison: Absolutely Your Honor and that's one of the important aspects of the Freedom of Information Act and why it's different from the law before 1966 when Justice Rehnquist mentioned just a minute ago that regardless of whatever test it was Your Honor.

It wouldn't made any difference what testified because a citizen had to be properly and directly concerned with the information before it could prior loose from the Government and there was no way that an ordinary citizen just simply wanting to find out whether airlines are operating properly could've gotten this information regardless of whether 1104 was an actual barrier.

Justice William H. Rehnquist: Well, there were two changes really weren't there for probably more than that but one was to do a way with the so-called standing requirement.

You had to show an interest in the thing.

Mr. Alan B. Morrison: Absolutely correct.

Justice William H. Rehnquist: And the second was to do a way with the general right of -- in a Government official to say the public interest requires this to be classified in secret.

Mr. Alan B. Morrison: That's right.

The Congress made the legislative judgments in 1966 as to what ought to be withheld as being in the public interest and everything else had to be disclosed, it was in everything had to be disclosed but for the specific exemptions.

So, the respondents wanted these documents for two reasons; one, to check on the airlines themselves, to see whether the airlines were doing what they could to prevent actions from taking place before they took place, and second to see whether the FAA was doing its job keeping an eye on the airlines.

And while their request was administratively pending, the ATA, the Air Transport Association on behalf of 28 airlines on be known to the respondents sent a two-page letter to the FAA which is reproduced at pages 112 and 113 of the appendix and they simply said, “We invoke 1104 and ask you to invoke 1104 to prohibit these documents from being disclosed.”

Section 1104 permits two agencies and only two agencies of the Government; the FAA for safety and the CAB for economic regulation matters relating to the airlines to withhold from the public any document that those agencies see fit if they make the determination that to release the documents is not required in the public interest.

Now, without the knowledge of the respondents and without asking for their position, the FAA simply based on these two-page conclusory letter ruled that all past, present, and future SWAP Reports that might be prepared by any administrator or under his direction of the FAA from now or hereafter were to be exempt if not in the public interest regardless of the special need, regardless of the special circumstances or anything whatsoever, it was almost a rule forever and ever --

Justice William H. Rehnquist: Is that a right to appeal at on the Administrative Procedure Act?

Mr. Alan B. Morrison: Well, Your Honor, the Government says that we could take an appeal on that order under 49 U.S.C. Section 1486.

The CAB and the FAA have jurisdictional appeals to the Court of Appeals as suppose to the District Court.

I don't know what the test for standing is going to be under that provision.

I would think that the Government would assert -- may well assert that we have to have a specialized interest.

Justice William H. Rehnquist: But if your quarrel is with the propriety of that particular determination rather than with the fact that however sound that determination, it can't prevail over the Freedom of Information Act.

I should think your remedy would be by appeal of that determination.

Mr. Alan B. Morrison: That's right.

My point is not that the -- specifically that that determination was wrong although I believe it to be wrong and was so urgent Your Honor.

But I believe that the problem is created by the fact that if for instance, the Government is correct that we do have a remedy and assuming that they don't argue standing and then we can get into Court, we then go to the Court of Appeals for the District of Columbia Circuit for instance.

Well, there we are in the Court of Appeals with our 1104 issue but meanwhile, the Government has said, “Oh, you can't get these documents for three other reasons.”

Exemption 4 says they're confidential commercial financial information.

Exemption 5 says these are intra-agency memoranda, all of which of course were prepared by the FAA, although of course given to the airlines and then they also said well they're investigatory files.

Justice William H. Rehnquist: Well, nobody promised you a rose garden.

Mr. Alan B. Morrison: No, Your Honor, but at least I would like to now where I can take my client to Court.

Do we go to the Court of Appeals with all the claims and if we go there with all the claims, are the busy judges of the United States Court of Appeals going to try the factual questions arising under these exemptions, what about other rights?

Rights to Expedition, Rights to Standing, Rights to Attorney's Fees, all of these are special rights created under the Freedom of Information Act.

Do we take them all with us to the Court of Appeals as we go under 1486?

Well, I don't know what the answer to that question is but if we don't go there, do we go to the District Court and do we have a bifurcated proceeding of some kind with one proceeding in one Court and one on the other.

These problems Your Honor are not insoluble.

They could be worked out if were necessary but we suggest that the very practical reasons counsel against having this kind of a situation where we end up in one Court with one issue, one in another issue and create a procedural quagmire which Congress surely never could've intended and can readily be averted by simply saying to the FAA and the CAB, “Look, you're just like everybody else.

You got all the rest of your defenses under the Freedom of Information Act.

Don't look for a homerun with Section 1104 because that's what it is.

It takes this right out of the ballpark any document whatsoever in the possession of the administrator or the CAB, it's out.

We can't get it unless we can convince the Court of Appeals according to the Government that it's not in the public interest.

What's the standard of review and that under the Freedom of Information Act, we're entitled to a trial de novo.

Are we going to have a trial de novo on this?

No, I don't think so.

I'm sure the Government wouldn't argue that we're entitled to it.

So, there we are back with a very limited scope of review based upon the kind of record we have here which is almost non reviewable.

Justice William J. Brennan: Mr. Morrison, coming back to the question I ask you, you responded that any citizen would have the same right to sue, let's assume you win this case, would any citizen have to make any showing to be entitled to the documents or reports that you desire or would it suffice if he merely wrote a letter to the FAA and said, “please put me on your mailing list.

From now on, I want every one of these reports; otherwise, I'm going to sue.”

Mr. Alan B. Morrison: Your Honor, in most cases, the Government agencies wants a final authoritative ruling by either this court or appropriate Court of Appeals has been issued has been following the Freedom of Information Act and has been adhering to the rule that's been annunciated and we would expect as it happened in this case Your Honor, once we were judged to be entitled to the MRRs, those are the Mechanical Reliability Reports that were not appeal by the Government.

We got those reports, we will put on the mailing list and it's my understanding that anyone now can go in and ask for the same reports and get them just as we do.

So, I would assume that the good faith of the Government would be such that no one would have to sue the FAA again to get these particular reports.

We would be more than glad to furnish him to anyone who was prepared to pay the cost.

Thus --

Justice William J. Brennan: You are offering to pay the cost yourself, aren't you?

Mr. Alan B. Morrison: For copies, yes Your Honor.

There are provisions in the statute that permit the waiving of fees.

We may in some of these cases not want actually copy the documents.

The Act provides for two means of access; one is access that is you can go over and look at the documents and inspect them.

If you decide you want them, you can have them or also provides for copies at cost and there are provisions of waivers for cost whether we would want all the documents all the time I couldn't say Your Honor but we do want the access to them so we can start to look at them and see what's really in them.

Incidentally, there is a portion of one of these SWAP Reports which is reproduced in the joint appendix that I commend to your examination.

Justice Potter Stewart: What pages?

Mr. Alan B. Morrison: I think about page 40 but I'm not positive.

34 to 36.

So based upon the determination by the --

Justice Potter Stewart: How did this get o the record incidentally?

Mr. Alan B. Morrison: Your Honor, a copy of that was attached to the affidavit of the plaintiff Mr. Robertson.

He obtained a copy of it and that was put in the record to give the District Court of ideas.

Justice Potter Stewart: About what kind of animal we're talking about.

Mr. Alan B. Morrison: That's exactly right Your Honor.

That's exactly right.

Chief Justice Warren E. Burger: How did he obtain this?

Mr. Alan B. Morrison: Your Honor, I was not counsel at the time that was put in, I do not know Your Honor.

These documents Your Honor are not classified in the sense that a top secret document be classified there are available around and while it's on the understanding between the agency and the air carrier that the documents are not to be -- are not generally made available to the public and it's so stated in the handbook which is prepared that they are not generally made available to the public.

There was no formal ruling and indeed the specific request of the ATA in this case to hold these things confidential.

Belies the notion that it was a generally accepted practice that even that not withstanding the Freedom of Information Act, it could be withheld.

Incidentally, in that regard, I may point out that the fact that a particular individual may have expected the Government to keep the document confidential is of course no defense to a request under the Freedom of Information Act or the Congress is overwritten that and a private agreement between a particular individual and the Government is not itself a reason unless the document otherwise comes within one of the exemptions to the act.

Based upon the determination by the FAA that 1104 applied and that ought to be invoked, the respondents request was denied and based upon the three other exemptions I mentioned earlier, the respondent's final administrative remedies were exhausted and this action thereafter ensued.

The District Court rejected all of the defenses are raised by the petitioners and the Court of Appeals ruled solely on the Exemption 3 claim and therefore that's the only issue we have before this Court.

It remanded the matter for further proceedings with respect to the other defenses raised by the Government.

Exemption 3 permits the withholding of documents which are in the language of that provision specifically exempted from disclosure by statute and the question presented is are the SWAP Reports specifically exempted from disclosure by Section 1104 as the petitioners urge.

Even though these reports are not mentioned in Section 1104 and the basis for withholding them is the determination by the head of the FAA that the public interest does not require their disclosure.

We suggest that if the position of the Government is a date adopted here.

The result would be a creation of a wholesale exception the Freedom of Information Act for these two agencies; the FAA for safety and the CAB for economics.

They could simply decide for themselves where the public interest lies and hold or release documents accordingly and we believed that that was not congressional intent.

Moreover, the result in this situation that the Government urges here is inconsistent with the intent in Congress in repealing former Section 3 of the APA and enacting Freedom of Information Act.

Chief Justice Warren E. Burger: We'll resume there at one o'clock.

Mr. Morrison, you may continue.

Mr. Alan B. Morrison: Mr. Chief Justice, may it please the Court.

The result that the plaintiffs and respondents are urging in this case is supported amply by an examination of the overall congressional purpose in enacting the Freedom of Information Act.

This purpose was plainly to replace the vast administrative discretion that was available under the old APA Section 3 to withhold and which ran rapid under that statute so that as this Court said in Mink the statute became more of a withholding of then a disclosing statute.

And Congress decided that if rather than the agency should decide what documents ought to be disclosed and where the public interest lay in specific situations and it did this in the following way.

It said that all documents were to be disclosed except for those specifically exempted.

It setup nine specific exemptions in Section 552(b).

Now, for eight of these, Congress that wrote the Freedom of Information Act in 1966 set forth those standards and I include in those eight, Exemption 1 because the important thing about Exemption 1 is although it made reference to an executive order, it was an executive order which permitted withholding only in the interest of national defense or foreign policy and that in our view readily distinguishes it from the kind of open-ended statute we have here.

It makes the national defense standard of Exemption 1 similar to other kind of standards that are set forth in the other provisions of the Freedom of Information Act, although, in fact the mechanism for bringing it about or somewhat different but basically there is a congressional imposition of a standard there adjust as there was a congressional imposition of a standard regarding the other substantive exemptions.

Now, with respect to the last exemption, Exemption number 3, the one we have before this Court, the Court decided that -- the Congress decided that rather than striking a new balance between where the public interest lay where the Congress had previously spoken, it decided to defer to the judgment of prior congresses and that is by going back and saying we'll continue in effect prior statutory exemptions.

We won't second guess the determination's specific judgments made by the prior Congress.

Indeed the Government's reply brief in this Court said that what Congress was really doing was that it decide it would not attempt to reexamine or distinguish prior legislative judgments.

The question we have to ask here is “was there the kind of legislative judgment in Section 1104 given the fact that it's so open ended with both respect to the kind of documents and the standards for disclosure?”

Justice Byron R. White: Doesn't the 1104 though rest on some additional finding about the adverse effect upon the interest of private parties?

Mr. Alan B. Morrison: Yes, Your Honor.

There is that phrase in there.

Justice Byron R. White: Isn't that that the public interest requires that -- that the public interest requires it to be remained secret but that the public interest -- that the interest and is not required -- disclosure is not required in the public interest.

Mr. Alan B. Morrison: There are both those phrases in there Your Honor.

Justice Byron R. White: But they must find that the private interest would be adversely effective.

Mr. Alan B. Morrison: Whatever the interest is of the requesting party and Your Honor as we read the statute indeed even another FAA official could make the request that the information not be disclosed, it simply says any person may make a request and there's nothing specifically limited in that but confining it to the question specifically that Your Honor as we view the adversely effect that simply as another side of the same public interest determination that really once someone has requested that a document be made available.

It is after all a Government document that it ought in the general course to be made available as being in the public interest, the public to know what's going on unless there is some kind of adverse interest.

We suggested in our brief at footnote seven on page 13 that indeed the adversely affected standard was subsumed in as part of the same public interest standard.

We don't understand that --

Justice Byron R. White: I don't think you would argue that the board doesn't even have to find that the public interest requires that it be kept secret that it's a much even a lesser standard than that all it requires is that --

Justice Potter Stewart: It's conjunctive though.

Mr. Alan B. Morrison: It's conjunctive yes.

I believe we must find that it is adversely --

Justice Byron R. White: That's right.

Well, I know but it doesn't, but all I have to find is that the public interest doesn't require the disclosure, doesn't have to find that the public interest requires a nondisclosure.

Mr. Alan B. Morrison: That's right.

I understand your point.

I think I adopt it and do so vigorously that it is even less restrictive standard that is the burden is almost on the public rather than on the withholding rather than the other way around.

We don't have to find the secrecies required as the old APA did but merely that the public interest doesn't require that the document be released.

Justice Potter Stewart: If it adversely affects somebody?

Mr. Alan B. Morrison: That's right and we say that that's all really partially subsumed in the same standard.

Justice Byron R. White: But that does narrow the area it seems to me of -- in terms of whether it's open-ended or not, somebody has to file something and say here as why and the board has to find that the adversity affects interest to somebody.

Now, that certainly just isn't an open-ended invitation to the agency.

Mr. Alan B. Morrison: Well, there is somebody that has to make that determination.

I don't know whether the board or the FAA could do it on their own.

We believe it could indeed in the Cutler case which is cited in our brief.

Justice Byron R. White: Well, it didn't hear anyway.

Mr. Alan B. Morrison: No, Your Honor.

It did not hear, that is correct, at least as far as the record discloses --

Justice William J. Brennan: Well for example, wasn't 1104, I suppose one of the SWAP Reports spoke disparagingly of a particular mechanic.

Mr. Alan B. Morrison: That's right.

Justice William J. Brennan: By name?

Mr. Alan B. Morrison: Yes, sir.

Justice William J. Brennan: Now, was 1104 could he commend and ask of that SWAP Report.

It could be publish because he says that's going to affect me personally.

Mr. Alan B. Morrison: He could.

Justice William J. Brennan: And then I gather the board has to make the further inquiry where there nevertheless the interest of the public would require this.

Mr. Alan B. Morrison: But more importantly Your Honor, for the purpose of Freedom of Information Act, that mechanic would -- may well be protected under the six exemptions which prevent clearly unwanted invasions of personal privacy.

The important thing about 1104, its not, either, or nothing, the sole defense does not become 1104 nothing, its 1104 or whatever else ever at the agency has.

Justice Byron R. White: If it gets rather the example, you would say that that document is not exempt under this particular exemption.

Mr. Alan B. Morrison: That's correct.

Justice Byron R. White: And that despite this exemption, despite the adverse effect on it, that 1104 just has no application whatsoever.

Mr. Alan B. Morrison: That's right, that's precisely our position.

Justice Byron R. White: That it has been in effect repealed.

Mr. Alan B. Morrison: Except Your Honor to this limited area, it provides a mechanism for persons who wish to have documents that are otherwise that the agency might release if it chose.

For instance, in this mechanic's report, the sixth exemption is discretionary.

The agency need not withhold documents simply because it might withhold the document.

Justice William J. Brennan: But well, I gather what you say that if you have something which would protect the mechanic, you would have to be under three others that have to be and explicit statute which said and no SWAP reports that involved a mechanic and may adversely affect him shall be published.

Mr. Alan B. Morrison: I think we can go make it a broader statute and that Your Honor for instance --

Justice William J. Brennan: How much broader?

Mr. Alan B. Morrison: Well, let's take the area of the Veterans' Administration which would be not dissimilate.

Justice William J. Brennan: Does anybody named Jones?

Mr. Alan B. Morrison: Anybody named Jones or mechanics -- the Veterans' Administration has a statute titled 38, Section 3301 which says that, “Any matter relating to any claim of a veteran under this chapter maybe with -- shall be withheld unless one of the following conditions.”

No question in our mind about that.

Justice William J. Brennan: Any matter involving any mechanic.

Mr. Alan B. Morrison: That's right.

If that's what the statute said, we don't have any problems with that.

If the problem here is --

Justice William J. Brennan: Unless it's like that, you say it doesn't come within --

Mr. Alan B. Morrison: Exemption 3.

Justice William J. Brennan: Within Exemption 3.

Mr. Alan B. Morrison: Because Exemption 3 uses some words that we believe are fairly narrow words.

They're not the clearest words that I've ever seen written, I couldn't say that they are but they do suggest a narrow construction specifically exempted from disclosure by statue.

The by statute was --

Justice William J. Brennan: Well, I know but if they are, that ambiguous I take it then the legislative history becomes quite important does it.

Mr. Alan B. Morrison: The general legislative history does, yes Your Honor.

We don't think that -- we think that they suggest and strongly infer that it is the statute that must have a major important role in making the exemption rather than the administrator.

Here everything is on the administrator.

There is nothing that the statute commands to do except set the most general terms of the exemption.

It does not constitute in our view a legislative judgment.

Congress did not sit down and say, “Well now, what are we going to do about this kind of problem.”

It didn't focus in as it did on for instance tax returns and said, “Across the board, tax returns shall not be disclosed except in certain circumstances.”

We think that's what Congress did with the other exemptions and then it simply in the third exemption adapted prior legislative judgments that were similar in kind to the kind it was making in 1966 with regard to all of the exemptions except number three.

Justice William H. Rehnquist: What is that that's protected if it is “specifically exempted from disclosure by statute?”

Its not documents as it is matters.

Mr. Alan B. Morrison: That's right and that I think Your Honor means that portions of documents can be withheld whereas the whole -- the entire document may not be that's as I interpret it.

Originally, when the statute was written, it referred to particularize records of the statutes were rearrange and shuffled around but I don't think anyone believes that there's any difference between the particularize records that could be withheld and the matters that are now focused on.

This is even been made very clear in the recent amendments for the Freedom of Information Act where they specifically spell out that certain parts of documents can be made available or practice which had been followed before even a lot of parts might have to be disclosed.

Justice William H. Rehnquist: But the fact that the phrase is matters rather than documents may conceivably shed some light on the meaning of specifically exempted from disclosure by statute might not?

Mr. Alan B. Morrison: It might Your Honor but there is no legislative history and we've gone over every bit of it that we --

Justice William H. Rehnquist: Well, I was just thinking of the legislative language rather than the legislative history.

Mr. Alan B. Morrison: Well, I would say this Your Honor, there's no indication that any place in the Congress, anyone focus on the words matters as oppose to documents, or particularized records.

There doesn't seem to be any precise focus on these matters as we suggest there was no focus on the language for instance comparing the first exemption or the third exemption.

They just were treated differently and I don't think that there's any evidence of any focus.

Justice William J. Brennan: -- were certain true matters has boarder connotation for the document.

Mr. Alan B. Morrison: Well, I would say --

Justice William J. Brennan: I mean literally.

Mr. Alan B. Morrison: Yeah, that's right but in the context that matters in general might but in the context to the Freedom of Information Act where we are after our only talking about documents, records is the precise term of the act --

Justice Byron R. White: Have you ever -- any suggestion of legislative history that any of these statutes such as 1104 or intended to be repealed that might do.

Mr. Alan B. Morrison: That's correct, Your Honor.

Justice Byron R. White: And of --

Mr. Alan B. Morrison: We don't believe it was repealed.

Our question really is did Congress intend to encompass within Exemption 3 an open-ended statute like 1104.

Justice Byron R. White: But your argument be the same if Congress today pass the statute like 1004?

Mr. Alan B. Morrison: Your Honor, I was thinking about that before it came here today and the answer is I would suggest, yes, Your Honor.

The answer I --

Justice Byron R. White: But you didn't have too and you --

Mr. Alan B. Morrison: Well, I would suppose we would have a little legislative history at that point Your Honor and I think it probably could be --

Justice Byron R. White: Well, were there any of the hundred statutes that or has Congress pass any statutes such as this since the Freedom of Information Act?

Mr. Alan B. Morrison: Well, they have passed statutes that have in some respects, restricted access to documents but all of them have had either a standard as to the type of documents for instance the transportation board statute last year --

Justice Byron R. White: The mechanics type document.

Mr. Alan B. Morrison: Well, I would say much broader than that Your Honor, it says “Documents connected it in connection with the safety investigations shall not be disclosed or may not be disclosed except in certain circumstances, there either tell us what kind of documents we're dealing with.

They are at some sense specific.

Indeed the house report speaks about specific records which are withheld by these statutes.

The very house report relied on by the Government and we suggest that -- that at least suggest that in this exemption that Congress was talking about specific records and not merely the kind of general open-ended application to any document in the files of the CAB or the FAA, the Government says, “Those can be withheld under 1104.”

Justice Byron R. White: When was the compilation of a hundred statutes made?

Mr. Alan B. Morrison: Your Honor, I can't tell you when it was because I don't think there was one.

There is a 1960 compilation prepared by the Library of Congress.

We went back and tallied those yesterday Your Honor.

Justice Byron R. White: But was it ever done by a legislative committee or by --

Mr. Alan B. Morrison: No, that was referred to -- it was actually put into a legislative formed committee print of the House of Representatives in 1960.

But that particular document has far more than a hundred statutes in it.

Justice Byron R. White: When was the Federal Aviation Act passed?

Mr. Alan B. Morrison: 1938 and then it was re --

Justice Byron R. White: It was reenacted?

Mr. Alan B. Morrison: Reenacted 1958.

Justice Byron R. White: With this section in it?

Mr. Alan B. Morrison: That's correct.

It was the Civil Aeronautics Act in 1938 and then 1958 and there have been some changes in codifications but essentially 1104 has remain practically unchanged and for these purposes unchanged since then.

In the 1960 compilation has under the list of disclosure discretionary statute that has 79 national security disclosure prohibited 26 and the general confidentially, 68.

I don't know what that total is up to but that is far more than a hundred and I might also point out Your Honor that 1104, the statute relied upon by the Government is not in that list of a hundred in any place.

The only time it ever appears at any place is as an exhibit to a 1958 hearing that was closed before the exhibit got there and the same organization, a Library of Congress which prepared that exhibit in 1958 also prepared this document here two years later and didn't include it.

So I think that our search for a single touch down is bound to fail.

Chief Justice Warren E. Burger: Is there anything illogical or extraordinary about the fact that Congress in passing acts in such sweeping terms would not pause to try to identify all of the specific statutes which they had previously passed granting nondisclosure, the acts of Congress known it by some administrative decision, anything unusual about their saying as to all the matters on which we previously made a legislative judgment or going to preserve that privilege of non disclosure?

Mr. Alan B. Morrison: No, I don't think there's anything necessarily illogical and we would simply say Your Honor that 1104 doesn't represent the kind of legislative judgment that we think is required before a statute comes within exemption 3.

After all, the real import of the Freedom of Information Act was the Congress was taking control of it itself.

It was taking it away from the administration.

Chief Justice Warren E. Burger: How do you distinguish between -- it lost me there Mr. Morrison as to different kinds of legislative judgments.

Mr. Alan B. Morrison: Well, we think --

Chief Justice Warren E. Burger: I thought the role about the same and although some good some bad but they're all on the same level in terms of how they do it aren't they?

Mr. Alan B. Morrison: In the choice of how they do it Your Honor but the question of whether Congress has made a determination as to what lies in the public interest in terms of disclosure, legislative judgments in this sense.

We say a legislative judgment is reflected by one of three characteristics, either the particular document is to be withheld as described in the legislation tax returns for example or Congress has said the document may not be disclosed as it said for tax returns certain materials from the CIA shall not be disclosed, atomic energy information.

Or third, it has proscribed substandard under which the administrator may exercise its discretion, in other words, we view it as a kind of a reduction to the amount of delegation.

Previously, the administrative agencies had a lot of delegation and we think Congress intended very narrowly that to reduce that delegation to a much lower level than it previously existed, that's why we believed that 1104 which is far broader than any other statute does not apply here.

Justice Thurgood Marshall: Well, in order to say that, wouldn't you have to include and then move forth well drawn statutes or some phrase like that?

Mr. Alan B. Morrison: I'm sorry, I don't --

Justice Thurgood Marshall: You say this, the one that's not properly drawn and didn't have legislative clog to it nor how do you classify it like that, how could Congress classify it?

Mr. Alan B. Morrison: Well, I don't see there's anything wrong with the legislative technique in drawing -- in drafting 1104 Your Honor.

My question is whether Congress intended to bring it within specifically exempted from disclosure by statute provisions within 1104 or whether it's simply --

Justice Thurgood Marshall: And whether a specific exemption for CAB and FAA both.

Mr. Alan B. Morrison: But it wasn't by the statute Your Honor.

It was by the administrative action and through the administrator had some authority from the statute but we believe that that wasn't enough.

Justice Potter Stewart: It has to be more than authorizing statutes.

Mr. Alan B. Morrison: Exactly, Your Honor.

Justice Thurgood Marshall: It has to be more specific but 1104 didn't say that.

Mr. Alan B. Morrison: 1104 didn't say anything about that.

No, no, 1104 is the statute we're trying to deal within the context of Exemption 3.

Justice Thurgood Marshall: Exemption 3, doesn't say that as the point.

Mr. Alan B. Morrison: Yes, sir.

Justice Byron R. White: Was 1104 within existence before 58?

Mr. Alan B. Morrison: Yes, it was 1938 Your Honor.

Justice Byron R. White: But was it -- did they amend it in 58?

Mr. Alan B. Morrison: I believe it was slightly -- the phrases where slightly modified that provision about national defense was turned around a little bit in the last --

Justice Byron R. White: But it does say these documents shall be exempt from public disclosure.

Mr. Alan B. Morrison: 1104?

Justice Byron R. White: It says the board of administrational order, the information withheld from public disclosure.

Mr. Alan B. Morrison: That's right.

That's right.

Let me just -- I'm sorry Your Honor.

It should be withheld -- this information shall withheld from public disclosure one on their judgment, that's right.

That is the phrase.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Mr. Morrison.

Mr. Freidman.

Rebuttal of Freidman

Mr. Freidman: I just like to say one think in rebuttal.

This as we read the statue in the history of it and the language of it, there's nothing in the history of the language of Exemption 3 suggesting that Congress intended to limit the applicability of the statutes that it was continuing to once that reflected a particular type of legislative judgment.

We think the Congress speaks, we don't know how many other 70, 80, 90 or 100 but Congress intended to keep all of them in existence that's what the legislation --

Justice William J. Brennan: I gather Mr. Friedman that's really that if the subject is non disclosure no matter what the form it takes that's within Exemption 3.

Mr. Freidman: That is precisely it Mr. Justice and the reason, the reason for this we think is that when Congress came to deal with the problem of what to do with prior statutes that provided for non disclosure, it decided to leave the situation as it was and in this statute 1104 represents a particularized congressional treatment of this problem.

Congress decided in this area, it was going to leave it to the informed discretion of the administrator reflecting on the one hand entry to the people who were protesting it and second on the other hand whether despite this entry, it was required in the public interest and we think Congress in Exemption 3 intended to defer to that judgment and as in this case when the administrative made that judgment, Exemption 3 requires that this material not be disclose.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.