author: MacKINNON, Circuit Judge:

text:
    Malvin SCHECHTER, Appellant, v. Caspar W. WEINBERGER, Secretary, United States Department of Health, Education and Welfare.
    No. 73-1797.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 19, 1973.
    Decided April 17, 1974.
    As amended July 10, 1974.
    Ronald L. Plesser, Washington, D. C., with whom Alan B. Morrison, Washington, D. C., was on the brief, for appellant.
    Michael Kimmel, Atty. Dept, of Justice, with whom Harold H. Titus, Jr., U. S. Atty., and Leonard Schaitman, Atty., Dept, of Justice, were on the brief, for appellee. Walter H. Fleischer, Atty., Dept, of Justice, also entered an appearance for appellee.
    Before FAHY, Senior Circuit Judge, and WRIGHT and MacKINNON, Circuit Judges.
   ORDER

It is ordered by the Court, sua sponte, that the above entitled case is held in abeyance pending final disposition of the case of Stretch v. Weinberger, No. 73-1547, 495 F.2d 639, pending in the United States Court of Appeals for the Third Circuit, or until further order of this Court.

Counsel are requested to advise this court of the progress of the proceedings in the above noted case, of Stretch v. Weinberger.

Circuit Judge MacKINNON dissents for the reasons set forth in his opinion filed herein this date.

MacKINNON, Circuit Judge:

A majority of the panel have ordered sua sponte that this case be

held in abeyance pending final disposition of the case of William A. Stretch v. Caspar W. Weinberger, No. 73-1547, 495 F.2d 639, pending in the United States Court of Appeals for the Third Circuit, or until further order of this Court.

I believe the parties are entitled to our opinion at this time. My individual views on the merits are as follows.

The survey reports fall within the literal language of Exemption Three of the Freedom of Information Act which exempts from disclosure matters that are “specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3). Section 1306(a) of Title 42 prohibits the disclosure of “any . . . report . obtained at any time by the Secretary . . . or by any officer or employee of the Department . in the course of discharging their respective duties under this chapter except as the Secretary . may by regulations prescribe.” Since the survey reports were obtained by the Secretary in the discharge of his duties, they fall within the express language of Section 1306 and therefore are at least within the literal language of Exemption Three.

The issue is whether Congress intended to exempt reports of this nature. This issue turns on two separate questions. First, whether Congress intended to include reports of this nature within Section 1306; and second, whether Congress intended to included Section 1306 within Exemption Three of the Freedom of Information Act.

Stretch v. Weinberger, No. 73-1547, 495 F.2d 639 (3d Cir., 1974) concludes that Congress intended Section 1306 to prohibit disclosure only of information concerning individual persons, and not information concerning institutions. This conclusion rests on the assumption that reports in the nature of these survey reports did not exist when Section 1306 was enacted in 1939. This assumption is erroneous.

Reports similar to the survey reports were expressly contemplated by the Social Security Act of 1935. Several provisions of that Act required that a state plan must “provide that the State agency will make such reports, in such form and containing such information, as the Board may from time to time require. .” Social Security Act of 1935, Title I, § 2(a)(6), 49 Stat. 620 (Old-Age Assistance); id., Title IV, § 402(a)(6), 49 Stat. 627 (Aid to Dependent Children); id., Title X, § 1002(a)(6), 49 Stat. 645 (Aid to the Blind). When Congress enacted Section 1306 to prohibit disclosure of “any . . . report” obtained at any time by the Secretary, Congress clearly intended Section 1306 to encompass these general reports under the state plans.

Furthermore, a comparison of the language used in Section 1306 with the language used in other sections of the Social Security Act of 1939 demonstrates that Cohgress intended Section 1306 to encompass all reports, not merely reports on individual persons. The same Act which enacted Section 1306 (53 Stat. 1360 et seq.) included provisions designed to prevent the disclosure of information in the states’ possession. However, unlike Section 1306, the restrictions on state disclosure were limited to individual persons. Thus, Congress required the states to

provide safeguards which restrict the use or disclosure of information concerning applicants and recipients to purposes directly connected with the administration of old-age assistance.

Social Security Act of 1939, Title I, § 101, 53 Stat. 1361 (emphasis added). The same Act imposed substantially the same protection in connection with aid to dependent children and aid to the blind. 53 Stat. 1380, 1397. Thus when Congress intended to restrict the use or disclosure of information concerning individual persons, it used precise language to accomplish such an intention..

In the same Act, Congress employed significantly broader language to describe the prohibition on disclosure by the federal administrator. Thus, Section 1306 refers to “any file, record, report, or other paper, or any information obtained at any time by the Board .” See Social Security Act of 1939, Title VIII, § 802, 53 Stat. 1398. No doubt the protection of an individual’s privacy was one concern of Congress in enacting the 1939 amendments. But the use of different language within these amendments indicates that Congress intended Section 1306 to be a broader restriction on disclosure than the parallel sections relating to disclosure by the states.

The Stretch decision concludes that Congress did not intend Exemption Three of the Freedom of Information Act to encompass such statutes as Section 1306. This conclusion is not supported by the legislative history of the Freedom of Information Act.

Congress indicated that it was well aware of the existence of statutes such as Section 1306 when it enacted the Freedom of Information Act. In fact, the House Report on the Freedom of Information Act referred to a 1960 House Committee Print which lists Section 1306 as an example of non-disclose statutes. H.R.Rep.No.1497, 89th Cong., 2d Sess. (1966). If Congress had not intended to include this statute within Exemption Three, it could easily have done so either by explicitly narrowing the coverage of the exemption or by amending Section 1306.

Shortly after the enactment of the Freedom of Information Act, Professor Davis considered whether the Third Exemption encompasses statutes such as Section 1306. He concluded that it does.

Some of the statutes authorize agencies to determine whether specified information shall be made available to the public. For instance, the Securities Exchange Act authorizes the Commission to “hear objections” and then to make available an “application, report, or document only when in its judgment a disclosure of such information is in the public interest.” If the Commission under this provision decides against public disclosure, is the information, within the meaning of the third exemption, “specifically exempted from disclosure by statute”? Although a respectable argument may be made that the information is exempted by the Commission and not by the statute, that interpretation will defeat the intent of the Securities Exchange Act, which is more specific than the Information Act; therefore, perhaps the Securities Exchange Act should be deemed to “specifically exempt” whatever information the Commission, acting within the power granted, decides to withhold.

Davis, The Information Act: A Preliminary Analysis, 34 U.Chi.L.Rev. 761, 786-87 (1967). His reasoning is impeccable and persuasive.

Finally, it must be noted that Congress recently amended the Social Security Act to require the prospective disclosure of the type of reports at issue in this case. 86 Stat. 1329, 1428, 1461-1462. The enactment of such legislation, and Congress’ failure to require disclosure of reports prepared prior to the enactment of this amendment, amounts to a congressional interpretation (1) that prior to this recent amendment, Section 1306 has covered such reports ; and (2) that Exemption Three of the Freedom of Information Act encompasses Section 1306. For these reasons, I would affirm the statutory interpretation by the District Court and its resulting decision not to require disclosure of the survey reports.


source: Caselaw Access Project

author: LEVENTHAL, Circuit Judge:

license: Public Domain

text:
    Dale B. MENARD, Appellant, v. William B. SAXBE, Attorney General of the United States and Clarence M. Kelley.
    No. 71-1768.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 3, 1973.
    Decided April 23, 1974.

      Ralph J. Temple, Washington, D. C., with whom Howard Adler, Jr., Bruce P. Saypol, R. Raymond Twohig, Law Student, Noah Menard, Robert A. W. Boraks, Thomas C. Arthur, Warren C. Nighswander and Keith S. Watson, Washington, D. C., were on the brief, for appellant.

      James F. McMullin, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, and Joseph M. Hannon, Asst. U. S. Attys., at the time the brief was filed, were on the brief, for appellees.
    Before LEVENTHAL and ROBB, Circuit Judges, and GASCH, United States District Judge of the United States District Court for the District of Columbia.

       Sitting by designation pursuant to 28 U.S.C. § 292(a).

   LEVENTHAL, Circuit Judge:

Appellant Dale B. Menard brought this action praying that the files of the Federal Bureau of Investigation be purged of all information relating to his detention by the Los Angeles police on August 10, 1965. In prior proceedings before this court, we reversed summary judgment in favor of appellees because of the “necessity for a clear and complete factual record as a basis for adjudication.” Menard v. Mitchell, 139 U.S.App.D.C. 113, 430 F.2d 486 (1970). On remand, the District Court, after a full trial, declined to order expungement, but limited distribution of Menard’s record to Federal and state law enforcement agencies and agencies of the Federal Government for the purposes of employment. Menard v. Mitchell, 328 F.Supp. 718 (D.D.C.1971). We hold that Menard is entitled to an order directing the FBI to remove his record from its criminal files, and therefore remand.

I. THE ARREST

At the time of his arrest, Dale Menard was a 19-year-old college student spending the summer working in Los Angeles. On the evening of August 9, 1965, he visited with friends in the vicinity of Sunland Park, a recreational area in Los Angeles. At approximately 11:30 p. m., Menard walked to the park to wait for a friend who had arranged to pick Menard up and drive him to his room in a Los Angeles suburb (JA 165-69). The friend failed to arrive at the agreed time, and in the early hours of August 10th, after dozing dn a park bench and then walking across the street to look through the window of a rest home in search of a clock, Menard returned to the bench to wait once more. See Joint Appendix (JA) 169-71. '

At approximately 3:00 a. m., Menard was approached by two Los Angeles police officers (JA 171-73), who questioned him about a prowler report from the rest home. They also confronted him with a wallet they evidently had found on the ground near the park bench. (JA 179, 308). The wallet contained $10 and bore the name and address of an individual who lived about three miles from Sunland Park. (JA 175, 219-220). Despite Menard’s insistence that he knew nothing of the wallet, and despite the subsequent arrival of Menard’s friend, who corroborated his account, Menard was placed under arrest, booked and fingerprinted at the stationhouse, and held in police custody for over two days. No criminal complaint was ever filed; no evidence was found indicating that the wallet had been stolen; and no information was adduced that tied Menard to any crime. Nevertheless, the Los Angeles police routinely forwarded to the FBI a fingerprint card, containing Menard’s fingerprints and the notation that he had been arrested for burglary and two days later “Released — Unable to connect with any felony or misdemeanor at this time.” The FBI has retained a record of Menard’s arrest.

A few months later, Menard’s mother wrote the FBI to inquire whether any record had been kept of the encounter; the Bureau referred her to the California authorities. Correspondence continued for over a year, with the FBI, the Los Angeles police, and the California Department of Justice each taking the position that it was powerless to effect the removal of the record from the FBI’s files.

However, on January 16, 1968, after the complaint in this action had been filed earlier in the month, the FBI had a special agent review the Los Angeles police file. By April 1968 the FBI record was changed, “upon decision of Federal Bureau of Investigation and United States Attorney’s Office.” The entry for “Disposition or sentence” originally read: “Released — unable to connect with any felony or misdemeanor at this time.” As changed, the FBI record shows that two days after Menard was arrested, he was “Released — Unable to connect with any felony or misdemeanor — in accordance with 849b(l) — not deemed an arrest but a detention only.” Although the change entry does not say so specifically, it presumably referred to California Penal Code § 849(b) (l).

Unable to obtain relief expunging his arrest record through the administrative processes, Menard turned to the courts.

II. OPERATIONS OF THE IDENTIFICATION DIVISION OF THE FBI

The record developed in the trial court subsequent to our order of remand presents information concerning the Identification Division of the FBI, which has maintained fingerprint and arrest records since 1924. The Attorney General is authorized to maintain identification files by 28 U.S.C. § 534, which provides:

§ 534. Acquisition, preservation, and exchange of identification records; appointment of officials
(a) The Attorney General shall—
(1) acquire, collect, classify, and preserve identification, criminal identification, crime, and other records ; and
(2) exchange these records with, and for the official use of, authorized officials of the Federal Government, the States, cities, and penal and other institutions.
(b) The exchange of records authorized by subsection (a)(2) of this section is subject to cancellation if dissemination is made outside the receiving departments or related agencies.
(c) The Attorney General may appoint officials to perform the functions authorized by this section.

The practice of the FBI in implementing the statute reflects a series of positions taken by the Attorney General over the years. These have been codified in 28 C.F.R. § 0.85(b), which provides that the Director of the FBI shall:

Conduct the acquisition, collection, exchange, classification, and preservation of identification records, including personal fingerprints voluntarily submitted, on a mutually beneficial basis, from law enforcement and other governmental agencies, insurance companies, railroad police, national banks, member banks of the Federal Reserve System, FDIC-Reserve-Insured Banks, and banking institutions insured by the Federal Savings and Loan Insurance Corporation; provide expert testimony in Federal or local courts as to fingerprint examinations; and provide identification assistance in missing persons type cases, including those from insurance companies.

The Chief of the Technical Section of the FBI’s Identification Division described the Division as a “central depository for fingerprints submitted to us on a volunteer basis.” (JA 482). These records are maintained in separate criminal files and “applicant” files. The FBI’s criminal files consist of those prints submitted in connection with an arrest or conviction. The FBI’s applicant files consist of prints submitted in conjunction with induction into the armed services, applications for government employment, or other activity pursuant to which local authorities deem it appropriate to require fingerprinting to determine whether the applicant has a criminal record. The records are not sorted or cross-referenced in any way, nor is there special treatment of records of juveniles. (JA88-9).

The Bureau also maintains a file containing only the name of the individual and his prints. Primary contributors to this file, which is used for identification purposes only, are tourists, who submit their prints as they tour FBI facilities. (JA 656-57). This information may be made available to private groups, such as insurance companies, for the sole purpose of establishing identity, often in the case of missing or deceased individuals. (JA 629-630).

Two hundred million fingerprint cards are currently on file with the FBI, of which 19 million relate to criminal activity. (JA 511). Fingerprints are submitted to the Bureau by Federal, state and local agencies, on standard cards issued by the FBI (JA 10, 12, 201). The Bureau checks its records when it receives a fingerprint card and reports back to the contributing agency any prior arrests or convictions contained in its files.

The FBI disseminates records to contributing agencies throughout the country. For each “applicant” fingerprint card submitted to it by an “authorized agency” the Identification Division runs an automatic identification check (JA 46-7). If there is no prior arrest or conviction record, the FBI returns the fingerprint card with the notation, “No arrest record F.B.I.” (JA 471). If “criminal” fingerprint cards have previously been submitted, the contributing agency receives a copy of the records of the individual’s prior arrests. (JA 46-7, 54-5, 74, 95-6). Where “criminal” cards are submitted, the Bureau notes the information and sends the law enforcement agency such information as the FBI has.

The Division also receives hundreds of “name check” requests from “legitimate sources,” including congressmen and contributing agencies, asking for criminal records with only the subject’s name given as identification. Whenever possible, the Division honors these requests. The number of such “name checks” was estimated to be “in the hundreds” per day (JA 464).

During Fiscal 1970, the Identification Division processed 29,000 fingerprint cards daily, of which 13,000 were arrest submissions and another 16,000 noncriminal submissions from the approximately 8,000 contributing agencies (JA 457-58; 11,466). “The workload in the Division has reached the point,” testified Beverly E. Ponder, Chief of the Technical Section, in the spring of 1972, that “we cannot handle any more work.” (JA 645) However, some relief was expected when the Bureau occupies new quarters (JA 646).

Fingerprint arrest records are removed by the FBI from the files of the Identification Division when the contributing agency so requests. No inquiry is made as to the reasons supporting the request of the local agency for the return of the record. (JA 649). During fiscal 1970 over 6,000 records were returned in this manner, and that “is a growing statistic” (JA 650). The FBI retains its arrest records even where the record indicates that the arrestee was released without being charged, since it is the FBI’s firm policy that “The FBI does not have the authority to decide which fingerprints submitted by law enforcement agencies should be returned. Such a decision rests solely with the original contributor of fingerprints.” If the FBI makes the arrest, it will remove the arrest cards from its files “on a court order only” (JA 22).

With the apparent exception of the Bureau’s action in altering plaintiff’s record in the instant case, the FBI has never returned a fingerprint record on its own motion. Moreover, the Bureau will not amend, alter, or even reveal a record at the instance of a private individual, (JA 22-28), taking the position not only that the decision to expunge must be made at the local level, but also that disclosure to an individual of the contents of his record will not be permitted, “inasmuch as data contained in our files is confidential and cannot be furnished to private individuals.”

If a person inquires whether the FBI •has fingerprints on file, no search is made except in what is considered a “justified cause” — the case of a missing person, or a problem of someone trying to settle an estate (JA 23). Other persons — e. g., those concerned about job prospects or possible Government employment — are not told whether a card exists, but are simply referred to the agency which supplied the fingerprints. (JA 26). This policy is adhered to even if the inquiry is made by someone who does not remember the circumstances of his being fingerprinted, or even whether he was fingerprinted (perhaps because he was inebriated, see JA 28, or conceivably a victim of amnesia). Under its practices, the FBI is not concerned about an inaccuracy, beyond suggesting that the individual contact the local agency (JA 27-30). These practices of the FBI have evolved over time. They are not reflected in any memorandum of procedures or regulation (JA 33).

III. PROPRIETY OF ACTION AGAINST THE FBI

Menard seeks the elimination of his arrest record from the FBI’s files and rests his claim on a broad base of legal doctrine. It is claimed that retention of his record violates the Fourth and Fifth Amendments of the Constitution, subjects him to harsh penalties without being accorded due process of law, denies him the equal protection of the laws, and violates his rights to privacy.

Appellant is naturally concerned that the incident in which he was, by happenstance, subject to police detention has led to his becoming the subject of a criminal file. The first legal issue that arises is whether he has merely suffered personal distress, or whether there is legal injury.

Although Menard cannot point with mathematical certainty to the exact consequences of his criminal file, we think it clear that he has alleged a “cognizable legal injury.” Finley v. Hampton, 154 U.S.App.D.C. 50, 54, 473 F.2d 180, 184 (1972). See also Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). In Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938, cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973), this court held that an action for expungement of arrest records is justiciable. On a careful review of the jurisprudence we concluded, see 478 F.2d at 968: “The principle is well established that a court may order the expungement of records, including arrest records, when that remedy is necessary and appropriate in order to preserve basic legal rights.” This court, like other courts, held that unlawful maintenance of records of arrest results in “injuries and dangers” that are “plain enough,” 478 F.2d at 790, and that “this threat is not dissipated, or rendered insubstantial or illusory, by the fact that the arrest was not followed by a prosecution.” 478 F.2d at 962 (footnote omitted).

The judicial remedy of ex-pungement is inherent and is not dependent on express statutory provision, and it exists to vindicate substantial rights provided by statute as well as by organic law, United States v. McLeod, 385 F.2d 734 (5th Cir. 1967). Thus, for example, both this court and the District Court for the District of Columbia have ordered the expungement of records of police action taken in flagrant violation of the Fourth Amendment. In Sullivan v. Murphy, supra, we required expungement of records of mass arrests where established procedures broke down so that there was no showing of probable cause. And in Gomez v. Wilson, 323 F.Supp. 87 (D.D.C.1971), the District Court, Chief Judge Curran, required the return of “any and all such Police forms, indexes, and cross-indexes connected with the [plaintiff] and this case” where it found that the police had twice stopped plaintiff, questioned him as to his activities, and filled out a vagrancy observation form when they had no articulable suspicion that he was engaged in any illegal activity.

The disabilities flowing from a record of arrest have been well documented: There is an undoubted “social stigma” involved in an arrest record. “[I]t is common knowledge that a man with an arrest record is much more apt to be subject to police scrutiny — the first to (be questioned and the last eliminated as ' a suspect to an investigation.” Existence of a record may burden a decision whether to testify at trial. And records of arrest are used by judges in making decisions as to sentencing, whether to grant bail, or whether to release pending appeal.

The arrest record is used outside the field of criminal justice. Most significant is its use in connection with subsequent inquiries on applications for employment and licenses to engage in certain fields of work. An arrest record often proves to be a substantial barrier to employment. It appears, inter alia, that Menard’s FBI record was supplied, subsequent to the filing of the complaint in this ease, to the Marine Corps and the National Agency Cheek Center.

The jurisprudence on expungement of arrest records has developed, thus far at least, in actions brought against appropriate officials of the government whose officers had responsibility for making the arrest, initiating the arrest record, maintaining the arrest record, and determining the consequences, as in maintaining prosecutions. There arises for consideration the significance of the circumstance that in the action before us it is the Los Angeles police who made the arrest for a violation of state law, and who initiated the arrest record, while the defendants are officials of a federal agency whose involvement and responsibility turn on the receipt, maintenance and dissemination of the allegedly invalid arrest record.

Ultimate disposition of an action against a records agency based on maintenance and dissemination of unlawful arrest records would require decisions on a number of issues, and the interlacing of multiple stands of law. There would be issues such as whether the preservation of constitutional rights embraces, as a corollary, a strict liability like that which pervades the related field of responsibility of publication of libels, a responsibility based on the extent of knowledge in hand or imputable, or on a duty to make inquiry.

We think sound principles of justice and judicial administration dictate that in general actions to vindicate constitutional rights, by expungement of arrest records maintained notwithstanding release of the person and absence of probable cause for arrest, be maintained against the local law enforcement agencies involved. The primary duty of executive inquiry into the facts of distant arrests is a burden assigned more appropriately to the local agency whose officials made the arrest than to the FBI. Further, an official finding that an arrest is tainted by illegality stigmatizes the local enforcement agency to some extent — apart from the possibility of damage actions — and should be avoided where an alternate course is available. If the local law enforcement agency is a party to the action, it will have opportunity, in instances where it considers the claim improper, to present effectively its version of events and support its denial of relief.

In general, the role played by the FBI’s Identification Division is derivative, and relief granted solely against the FBI in this context may be incomplete. The offending “arrest record” remains in the files of the local law enforcement agency, and a question arises whether the person involved would be obligated to advise future employers and others that he had been arrested. With the local enforcement agency as defendant, complete relief can be granted, both to obtain such action on local records as may be needed, and to have local authorities request the return of records. Such requests are always honored by the FBI.

We are also reluctant, in the absence of a need greater than that established by this record, to concentrate in the Department of Justice the burden of overall litigation over maintenance of arrest records. Of the 19 million criminal prints on file with the Identification Division, it is impossible to predict how many would be the subject of dispute. We are concerned with the possible effects of a concentration of burden not only on the FBI and the Department of Justice, but also on this court and the District Court for the District of Columbia.

Our conclusion should not be taken to reflect a judgment of the insubstantiality of Menard’s claims. On the contrary, the gravity of those claims underscores the need for their adjudication between the appropriate parties. Conventional doctrines of venue may operate to localize the forum, but will not interfere with a call on cognizant Federal courts in the venue when administrative remedy is unavailing.

IV. DUTIES UNIQUE TO THE FBI

Insofar as Menard’s action attacks abuses of the Identification Division in its unique role in the information network, suit against the Bureau is proper. What began modestly in 1924 is now, in the words of the District Judge, “out of effective control.” Due primarily to the Bureau’s limited resources, there is no followup to assure that records of arrest frequently are amended to show an ultimate non-criminal disposition. There are no controls on the accuracy of information submitted by the contributing agencies. The Bureau exercises little supervision and control over contributing agency uses of the records the FBI disseminates. We are not now called upon to evaluate these practices of the FBI. However, this case does call upon us to take into account that the FBI’s function of maintaining and disseminating criminal identification records and files carries with it as a corollary the responsibility to discharge this function reliably and responsibly and without unnecessary harm to individuals whose rights have been invaded. The FBI cannot take the position that it is a mere passive recipient of. records received from others, when it in fact energizes those records by maintaining a system of criminal files and disseminating the criminal records widely, acting in effect as a step-up transformer that puts into the system a capacity for both good and harm.

The process of the Identification Division for sifting out submissions to determine what it retains in its criminal files is one that requires more attention. If the form is correct, the FBI will place in its criminal files virtually any information from local agencies arguably related to criminal activity. The FBI returns to the local agencies 10 percent of the criminal cards submitted when there are illegible fingerprints or incomplete data on the fingerprint form. But if the form is satisfactory and purports to record an arrest, the FBI makes no further inquiry and forthwith makes an entry in a criminal file.

In Menard’s case, after his complaint was filed, the FBI had a Special Agent review his Los Angeles arrest record, and it then amended the FBI record “upon decision of Federal Bureau of Investigation and United States Attorney’s office.” The change was a significant one. The FBI record continues the reference to an “arrest” on August 10, 1965. But it amends the “disposition” on August 12, 1965. A statement was added: “in accordance with [Calif. Penal Code] § 849b(l) — not deemed an arrest but detention only.” Even more significant, the original notation that the Los Angeles police “were unable to connect with any felony or misdemeanor at this time” was amended to drop “at this time.”

This was done after Menard filed his complaint asserting that no crime at all had been committed. And in the lawsuit the Government expressly adopted the plaintiff’s Statement of Material Facts as to Which There Is No Material Issue (filed, Juné 18, 1968) that “defendants know of no crime committed by anyone incident to plaintiff’s detention” (adopted by defendants on July 2, 1968). Nevertheless, Menard’s record remained in the FBI’s criminal files, along with the mass of arrest records, subject to dissemination in the same way as all arrest records.

Having been informed that Menard’s encounter with the Los Angeles police authorities was purely fortuitous, the FBI had no authority to retain this record in its criminal files along with the mass of arrest records. This is simply not consistent with the FBI’s duty, corollary to its function of keeping identification records, to take appropriate measures to assure that this function is discharged responsibly and that the records are reliably informative.

We note that we are focusing here on the FBI’s “arrest records” and “criminal files,” and we do not prohibit the maintenance of neutral identification records. When the FBI apprised that a person has been exonerated after initial arrest, released without charge and a change of record to “detention only,” the FBI has the responsibility to expunge the incident from its criminal identification files. The change of the FBI record to record the lack of connection of Menard with any crime and the characterization of the apprehension of Menard by the Los Angeles police as “in accordance with [California Penal Code] § 849(b)(1)” “deemed [not] an arrest but a detention only” indicates a local determination to that effect, responsive to the FBI’s own inquiry of the local authorities.

The FBI cannot turn aside its responsibility by claiming that it is powerless to act absent a specific and formal request from the Los Angeles police for withdrawal of the record. Dependence on other agencies may be sound enough for a practice born of expedience, but it may not be made rigid, like a rule of .law, in neglect or defiance of basic rights. While the Congressional program contemplates a major role for the local authorities, it does not contemplate Bureau abdication to the local authorities. The statute itself confirms the principle of FBI responsibility in section 534(b), providing for cancellation of exchange privileges if local agencies make records available to unauthorized users, and the Bureau recognizes its obligation to review this participation by local authorities.

The Identification Division has the responsibility for maintaining an appropriate separation of the various files it is authorized to establish, and for preventing the criminal identification files, subject as they are to dissemination, from containing inappropriate material. This appears from the legislative history. Congress intended to differentiate “criminal identification” from other information that the FBI is authorized to gather. We think it equally clear that the distinction intended by Congress should be drawn with regard to record of an encounter with law enforcement agencies that did not result in arrest. Although it is information that may aid FBI personnel to “more effectively do their work,” it is not information that the FBI may maintain in its criminal files “so as to be available anywhere in the United States.” The FBI has an obligation, enforced by our ruling, to take account of responsible information, even though not cast in the form of an express request from the local agency for return of the record, that the “arrest” record previously submitted did not communicate an information properly retained by the Bureau in its criminal files as an arrest record. Our ruling is in no way onerous, for the Identification Division has a sizeable screening staff, and substantial detriment to the individual is at stake.

An arrest is distinct from other interactions between citizen and police. An arrest “is the initial stage of a criminal prosecution.” When coupled, as here, with custody, it renders permissible a complete search of the person, assuming probable cause for the arrest, although such a search absent an arrest runs afoul of the Fourth Amendment. In contrast stand many other encounters between police and citizen, even in the course of criminal investigation, that do not have the quality of an arrest and its characteristic as the opening of a criminal chapter. “The police talk to too many people in the course of a day [in] routine police investigation” to insert either a requirement of formality binding on the police, or to permit the encounter to be memorialized as an arrest. It would be monstrous to suppose that all persons questioned by the police, many of them “cooperative and law abiding citizens” could properly be enshrined, for reasons of bureaucratic practice, in the FBI’s criminal records. The same principle applies when a person is subject by the police to detention short of an arrest, for as the stop-and-frisk eases make clear, a police detention may be justified by a mere “suspicion” that falls short of the probable cause required by the Constitution for an arrest.

We need not decide whether or to what extent the Constitution forbids the Government from contributing to the harm to the individual that may attend maintenance of a criminal file showing, as an arrest, what was only a chance encounter. We need not reach this question, for we place our decision on statutory grounds. There is a settled rule for statutory interpretation to avoid serious constitutional issues and this properly has some application in the case at bar. But even without the support of this doctrine, we think it plain that 28 U.S.C. § 534 precludes the Identification Division from maintaining in its criminal files as an arrest record an encounter with the police that has been established not to constitute an arrest.

We are not in this ease enjoining the FBI from maintaining Menard’s fingerprints in its neutral non-criminal files, provided there is no reference of any kind to indicate that the prints originated in a source for criminal files. We do not discern any reasonable claim of legal injury from being included in such general identification files, which also include, e. g., the prints voluntarily submitted by tourists, and which are not translated into the FBI’s centralized “rap sheets” reporting to all participating agencies on a person’s criminal record. However, our order does protect Menard from the injury portended by inclusion of his record and prints in the FBI’s centralized criminal files, for their continued inclusion in those files is, in our view, inconsistent with the intent of Congress.

Indeed, as we pointed out in Sullivan v. Murphy, supra, 156 U.S.App.D.C. at 63, 478 F.2d at 973: “the chief threat to the individual who has been unlawfully arrested arises from the inclusion of his records in the police department’s central criminal files” (emphasis added), as contrasted with a mere stationhouse record, which is needed to avoid secret police arrests (and harassments and shakedowns) and to protect police against unfounded lawsuits. Absent clear expression of legislative intent, we cannot conclude that Congress intended the individual to be threatened by inclusion in the central criminal files, which are kept to facilitate indexing and future reference.

The case is remanded to the District Court with instructions to enter an order directing appellees to remove appellant’s record from their criminal files.

So ordered.

      . However, in P.L. 92-184, 85 Stat. 642 § 902, passed December, 1971, Congress effectively overruled a portion of the District Court’s decree by expressly authorizing dissemination to: “officials of federally chartered or insured banking institutions to promote or maintain the security of those institutions, and, if authorized by State statute and approved by the Attorney General, to officials of State and local governments for purposes of employment and licensing

      . Originally the record read as follows:
      Date Arrested or Received — 8-10-65
      Charge or Offense — 459 PC Burglary

        Disposition or Sentence — 8-12-65—Re-leased — Unable to connect with any felony or misdemeanor at this time.
      Occupation — Student
      Residence of Person Fingerprinted — Saticoy & Canoga
      Canoga Park
      The record was amended so that the entry
      “Disposition or Sentence” now reads :
      8-12-65 — Released—Unable to connect with any felony or misdemeanor — in accordance with 849b(l) — not deemed an arrest but detention only.

      . “On January 16, 1968, the arrest record of Dale Bruce Menard, Los Angeles Police Department (LAPD) Number 760 111-M, was reviewed by a Special Agent of the FBI.” Defendants’ Answers to Plaintiff’s Second Interrogatories, Item 6, filed November 30, 1970.

      . Defendant’s Answer filed April 12, 1968, to Plaintiff’s Interrogatory #3, served March 26, 1968.

      . Calif.Penal Code § 849(b)(1) (West Supp. 1970) provides:
      Any peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever:
      (1) He is satisfied that there is no ground for making a criminal complaint against the person arrested. Any record of such arrest shall include a record of the release hereunder and thereafter shall not be deemed an arrest but a detention only.

      . The record does not tell us what name is given to these files, and we shall for convenience refer to them as general identification files.

      . “Authorized agencies” include all agencies of the federal government, all state and local law enforcement agencies, and all state and local agencies authorized by statute or regulation to submit fingerprints to the FBI. JA 489, 631, 641-42.

      . See JA 21.

      . Plaintiff's Exhibit # 2 : Letter of July 15, 1966, from John Edgar Ploover to Mrs. Anita B. Menard.

      . See note 2, supra, and accompanying text.

      . Plaintiff’s Exhibit ■# 12; Letter of March 18, 1966, from John Edgar Hoover to Mrs. Anita B. Menard.

      . Mr. Ponder also testified (JA 27) : If there is some problem involved and he is challenging the accuracy of the record, then we are certainly going to assist in getting this inquiry answered and answered promptly and properly.” In the instant case, the Bureau did not assist Mrs. Menard in contacting the California authorities, but merely suggested that she do so. With the California authorities insisting that they were powerless to act, the result was a bureaucratic standoff.

      . For illustrations of tlie doctrine that courts may, in appropriate circumstances, order the expungement of criminal records see, e. g., Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938 (1973) (mass arrests where procedures rendered judicial determination of probable cause impossible); United States v. McLeod, 385 F.2d 734 (5th Cir. 1967) (expungement of arrest records ordered when court determined that arrests were for sole purpose of harassing civil rights workers) ; Bilick v. Dudley, 356 F.Supp. 945 (S.D.N.Y.1973) (expungement of arrest record ordered when court found that arrests were without probable cause and had overtones of harassment of group because of political beliefs); Hughes v. Rizzo, 282 F.Supp. 881 (E.D.Pa.1968) (expungement ordered where arrests were for purpose of harassing “hippies”). Discussion of the disabilities flowing from a record of arrest as an appropriate ground for judicial relief appear not only in the Menard case previously before this court, as Menard v. Mitchell, 139 U.S.App.D.C. at 117-118, 430 F.2d at 490-491; but also in Sullivan v. Murphy, supra, Morrow v. District of Columbia, 135 U.S.App.D.C. 160, 417 F.2d 728 (1969); Kowall v. United States, 53 F.R.D. 211, 215 (W.D.Mich.1971); Bilick v. Dudley, 356 F.Supp. 945, 951 (S.D.N.Y.1973); Wilson v. Webster, 467 F.2d 1282, 1283-1284 (9th Cir. 1972); Davidson v. Dill, 503 P.2d 157, 159 (Colo.1972); Eddy v. Moore, 5 Wash.App. 334, 487 P.2d 211, 216 (1971).
      We are not here concerned with the issue of “applicant” files, which present separate and different considerations.

      . Although plaintiff appealed, that portion of the District Court’s order that required expungement was not appealed by the Government and so became final. See Gomez v. Wilson, 155 U.S.App.D.C. 242, 477 F.2d 411, 414 n. 10 (1973).

      . That a record of arrest is a “record involving social stigma.” see United States v. Dionisio, 410 U.S. 1, 10, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), quoting from Judge Friendly’s opinion in United States v. Doe (Schwartz), 457 F.2d 895 at 898 (2d Cir.).
      See also Thompson v. Washington, 162 U.S.App.D.C. -, 497 F.2d 626, 635, in which this court pointed out: “And Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) establishes that a person’s interest in his own reputation merits procedural due process protection.” (1973).

      . Davidson v. Dill, 503 P.2d 157, 159 (Colo.1972).

      . Menard v. Mitchell, 430 F.2d at 491.

      . See, e. g., Russell v. United States, 131 U.S.App.D.C. 44, 402 F.2d 185 (1968) (record of arrests may be used to determine whether appellant may be released pending appeal); United States v. Cifarelli, 401 F.2d 512 (2d Cir.), cert. denied, 393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 448 (1968) (in imposing sentence, trial judge may consider evidence of other crimes for which defendant was not convicted); Jones v. United States, 113 U.S.App.D.C. 233, 307 F.2d 190 (1962), cert. denied, 372 U.S. 919, 83 S.Ct. 733, 9 L.Ed.2d 724 (1963) (pre-sentence report may include, and judge may consider, records of charges not leading to convictions) ; 23 D.C.Code § 1321(b) (permits judicial officer, in determining the conditions of pre-trial release, to take into account defendant’s “past conduct, . . . record of convictions, and any record of appearance at court proceedings”).

      . See, e. g., Menard v. Mitchell, 430 F.2d at 490, n. 17:
      At the very least, an arrest record is likely to lead to further investigation; and if it is convenient to fill the job before the investigation is complete, the applicant is effectively denied employment because of his record.
      See also, e. g., Report of the Committee to Investigate the Effect of Police Arrest Records on Employment Opportunities in the District of Columbia (1967) ; Miller, The Closed Door: The Effect of a Criminal Record on Employment With State and Local Public Agencies (Georgetown University Criminal Law Institute, 1972).

      . Defendants’ Answer, filed Nov. 30, 1970, to Item 3 of Plaintiff’s Second Interrogatories.

      . See, e. g., Prosser, Torts, § 113, p. 766 ff. The author refers, inter alia, to rulings “that there may be an affirmative duty to remove a publication made by another, where for example the defendant’s bulletin board is used for the purpose.”

      . This includes the agencies and officials with responsibility for making the arrest, initiating an arrest record, maintaining an arrest record, determining appropriate disposition, whether, e. g., there has been exoneration. If more than one agency is involved there may be multiple defendants; indeed, it may be that a single action may be maintainable against state and federal officials as well as the initiating local agency.

      . Provision of local venue will also interrelate with evolving state and local procedures to cope with this problem. For example, California’s statutes provide for determination in some instances that an arrest is deemed solely a detention. (See fn. 5). An action against the local police could at least raise the question whether in such case they are not obligated, by fair implication of the state law, to withdraw whatever “arrest” record was sent to the FBI.
      New York has recently' adopted a procedure which does not formally qualify the arrest but inhibits the generation of the record that leads to legal injury. Under this procedure, if an arrested person brought to the stationhouse makes satisfactory explanation to the arresting officer, the latter must order a release without any stationhouse booking, N.Y.Crim.Proc.Law § 140.20(4) (McKinney’s Consol.Laws, c. 11-A, 1971). Presumably this also gives room to the supervising police office to exercise discretion to modify the initial decision to arrest.

      . See JA 649: Testimony of Special Agent Beverly Ponder, Chief of the Technical Section of the Identification Division:
      Q: If a police department asks it [the fingerprint record] back, you send it back, no questions, is that correct?
      A: That is correct.

      . See JA 645.

      . 328 F.Supp. at 727.

      . The Bureau does not check assertions of purpose, for example, that appear on the face of the submitted card. (JA 668).

      . The FBI does not inquire into the uses made of arrest records it sends to contributing agencies. (JA 55). All records, however, are stamped with the notation that only authorized use is permitted; but “authorized use” is not defined on the stamp. Contributing agencies may disseminate records to other contributing agencies, but dissemination to agencies that are not authorized by the FBI to receive records is not an “authorized use.” (JA 82). However, the FBI does not send a list of authorized agencies to its contributing agencies. Id. Despite newspaper reports and other external indication of misuse of arrest records, the Bureau will not investigate alleged misuses of records unless presented with a direct complaint (JA 499-500, 507) of which there are about four or five yearly. (JA 120).

      . Although the record before us does not contain data concerning the computerization of the FBI’s records, it does reveal that a computerization program is proceeding apace, increasing the Division’s effectiveness, and enhancing its capacity for both good and harm.

      . Special Agent Ponder testified that “we have a large screening process.” (JA 690). The first operation upon receipt of a card is to check that it contains all relevant information, including “person to be notified in case of emergency.” (JA 658).

      . The Identification Division is quite strict in demanding adherence to the requirements that the fingerprint card be completed as indicated. For example, the card requires that the contributing agency indicate the reason for which the record is requested. If that information is not included, the card is returned without an accompanying record. (JA 667).

      . If the card indicated an arrest with the disposition “dismissed,” the FBI would nonetheless retain the card for its files. (JA 21).

      . See JA 18.

      . See note 3, supra.

      . Defendant’s Answer filed April 12, 1968, to Plaintiff’s Interrogatory 3, served March 26, 1968.

      . Section 849(b)(1) authorizes a peace officer to release an arrested person from custody if “[h]e is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested.” Section 849(c) provides that after such release “such arrest shall not be deemed an arrest, but detention only.”
      Section 11115 provides:
      In any case in which a sheriff, police department or other law enforcement agency makes an arrest and transmits a report of the arrest to the Bureau of Criminal Identification and Investigation or to the Federal Bureau of Investigation, it shall be the duty of such law enforcement agency to furnish a disposition report to such bureaus whenever the arrested person is transferred to the custody of another agency or is released without having a complaint or accusation filed with a court. If either of the following dispositions is made, the disposition rej)ort shall so state:
      (b) “Detention only,” when the detained party is released pursuant to paragraph (1) of subdivision (b) of Section 849. In such cases the report shall state the specific reason for such release, indicating that there was no ground for making a criminal complaint because (1) further investigation exonerated the arrested party, (2) the complainant withdrew the complaint, (3) further investigation appeared necessary before prosecution could be initiated, (4) the ascertainable evidence was insufficient to proceed further, (5) the admissible or adducible evidence was insufficient to proceed further, or (6) other appropriate explanation for release.

      . When the FBI is asked by an appropriate agency whether a person has a criminal record, it focuses on whether or not the person has an “arrest record.” The inquiry card will be returned to the agency without any information only if the FBI certifies “no arrest record” (JA 471).

      . In the circumstances at bar, the FBI’s investigations gave it information equivalent to a formal notation by California police pursuant to § 11115 of the California Penal Code, that “further investigation exonerated the arrested party.”

      . This is a fair implication, taking into account general FBI practice, although the récord does not specifically state on what basis the FBI amended the record.

      . See footnote 36.

      . While this is the stated policy of the Bureau, it has not aggressively policed use of its records, see note 28 supra, and has in fact, since 1924, suspended the privileges only of six local law enforcement agencies, none of them major departments. (JA 507).

      . In the limited debate attendant to the statute’s original enactment, Congressman Cochran of Missouri questioned the broad authority being given the FBI to collect fingerprints. Congressman Graham of Pennsylvania, Chairman of the House Judiciary Committee, which had reported the bill favorably, replied:
      I would like to say that what the gentleman from Missouri has been saying has no application whatever to the matter of fingerprints. This has nothing to do with the bureau of the Department of Justice where criminal records are kept so as to be available anywhere in the United States.
      There are two classes of information that is gathered. One is criminal records, and another is the information that is gathered about criminals that is not a matter of record. That they do not give out, but the criminal records they do give out. That information is gathered for the department itself and its agents, in order that they more effectually do their work.
      72 Cong. Bee. 1989 (71st Cong., 2d Sess., Jan. 20, 1930).
      Initial statutory authorization was limited to the acquisition and preservation of “criminal identification and other crime records.” 5 U.S.C. § 340 (1964), repealed, Pub.L.No. 89-554, § 8(a), 80 Stat. 632, 648 (1966). Under the present statute, the Attorney General is directed to “acquire, collect, classify, and preserve identification, criminal identification, crime, and other records.” 28 U.S.C. § 534(a). That section, however, was enacted by Pub.L.No.89-554, § 4(c), 80 Stat. 611, 616 (1966). Section 7(a) of the Act, 80 Stat. 631, states that “The legislative purpose in enacting sections 1-6 of this Act is to restate, without substantive change, the laws replaced by those sections on the effective date of this Act.”

      . A similar claim was raised by appellant when this case was first before us, but was rejected on the grounds that it was not established by “the facts established on the cross-motion for summary judgment.” For this and other reasons, the case was remanded in order to develop “a clear and complete factual record as a basis for adjudication.” Menard v. Mitchell, supra, 430 F.2d at 489, 494.

      . See note 30, supra.

      . See notes 15 to 20, supra, and accompanying text.

      . Terry v. Ohio, 392 U.S. 1, 25-26, 88 S.Ct. 1868, 1882, 20 L.Ed.2d 889 (1968). See also United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

      . United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467 (1973).

      . [Vance] Allen v. United States, 129 U.S.App.D.C. 61, 64, 390 F.2d 476, 479 (1968).

      . Id.

      . Terry v. Ohio, supra, note 46.

      . Compare Constantineau v. Wisconsin, supra note 15.

      . See, e. g., Richmond Co. v. United States, 275 U.S. 331, 346, 48 S.Ct. 194, 72 L.Ed. 303 (1928); Thompson v. Washington, cited supra note 15, 162 U.S.App.D.C. -, 497 F.2d 626, 633.

      . We are concerned with the judicial role of determining what is required by the statute (and Constitution). While in this case we are required to disapprove the action of the Department of Justice, we think it appropriate to take note that subsequent proposals of that department are congruent with the premises of this opinion. We refer to the regulations concerning the dissemination of criminal record data recently proposed by the Department of Justice, 39 Fed.Reg. 5636 (Feb. 14, 1974). These reflect the Department’s judgment that records subject to dissemination should be limited to those arising out of serious interaction between the individual and law enforcement authorities. They further note that only “serious and/or significant violations” are includible in criminal record information systems (§ 20.32). The term “criminal offender record information” is defined in § 20.2(c) to include “only identifying data and notations of arrests.” ■ This excludes mere detentions. This meaning does not depend on negative implication, for the regulations go on to provide a specific exclusion of arrests for loitering and “suspicion.” This insures that those who are arrested but as to whom the police are “unable to connect with any felony or misdemeanor” (the words of Menard’s record) do not find themselves with a criminal record subject to full dissemination.

      . The FBI’s practice of maintaining fingerprint files for purposes other than preservation of criminal records, is related in the record before us, JA 629-30, 656-57. The statute provides separately, for authority to preserve “identification” and “criminal identification” records, see 28 U.S.C. § 534(a)(1). The regulation refers, inter alia, to “personal fingerprints voluntarily submitted” by banks, insurance companies, etc. and to a FBI mission to “provide identification assistance in missing persons type cases.” 28 C.F.R. § 0.85(b).

      . While, as already noted, this order would not prohibit inclusion of Menard’s record in the general identification files (supra note 6), we do not purport to decide whether such inclusion is appropriate under the FBI’s regulations pertinent to establishment of those files. That question is not before us.


author: FAHY, Senior Circuit Judge. ROBB, Circuit Judge,

text:
    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. 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 1958 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.

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. 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 eongressionally specified statutory category. It would be unacceptable to hold that his conclusion that disclosure of any and all of the reports requested 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.”

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 “specifically exempted from disclosure by statute.” 112 Cong.Rec. 1346 (1966). Section 9 of the census statute, however, had previously been interpreted by Judge Weinfeld of the United States District Court for the Southern District of New York in United States v. Bethlehem Steel Corp., 21 F.R.D. 568 (S.D.N.Y.1958), where he held in a comprehensive opinion that, “the language of the [census] statute is clear and unambiguous,” Id. at 569-570, and in it “Congress has recognized and created an express privilege” of confidentiality with specific statutory exceptions. Id. at 570, 571.

The Senate Report reflects the House’s concern over governmental misuse of the APA and expresses as follows the purpose of the Information Act:

Innumerable times it appears that information is withheld only to cover up embarrassing mistakes or irregularities and the withholding justified by such phrases in section 3 of the Administrative Procedure Act as — “requiring secrecy in the public interest,” or “required for good cause to be held confidential.”
It is the purpose of the present bill to eliminate such phrases, to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language and to provide a court procedure by which citizens and the press may obtain information wrongfully withheld. It is important and necessary that the present void be filled. It is essential that agency personnel, and the courts as well, be given definitive guidelines in setting information policies. Standards such as “for good cause” are certainly not sufficient.

S.Rep.No.813, 89th Cong., 1st Sess. at 3 (1965).

C. Aware as we are of the thoughts of others adduced to support appellants’ position, we are nevertheless persuaded that they should not control the court’s construction of the language before us. An overriding consideration is the reasonably plain statutory language of Congress in Exemption (3), considered with the basic purpose of the Information Act calling for narrow, though, of course, not artificially so, application of its non-disclosure exemptions. Vaughn v. Rosen, supra. Moreover, further consideration of the relationship between the Information Act and the earlier Aviation Act, now to be outlined in Part IV, we think is persuasive of the correctness of the decision of the District Court.

IV

Both statutes — section 1104 and the Information Act — have to do with disclosure of government information. They are pari materia and should be construed together so as to effectuate the over-all congressional policy. This approach is peculiarly appropriate in a case involving section 1104, in which the final statutory standard upon which disclosure turns is the public interest. The Information Act is now the basic congressional expression of the public interest with respect to information in the possession of the federal government. When a previously enacted statute, such as 1104, has provided such a standard the subsequently enacted and comprehensive Information Act, in the varied circumstances enumerated in its provisions, is the guide to the congressional intent with respect to the public interest. This view is confirmed indirectly by the Supreme Court in Mink. The Court there discussed the legislative development culminating in the replacement by the Information Act of section 3 of the Administrative Procedure Act. 5 U.S.C. § 1002 (1964). That section, the Court stated, fell “far short of its disclosure goals and came to be looked upon more as a withholding than a disclosure statute.” Continuing, the Court said that section 3 was:

. plagued with vague phrases, such as that exempting from disclosure “any function of the United States requiring secrecy in the public interest.” (Emphasis added.)

410 U.S. at 79.

Accordingly, we believe it follows that the public interest standard of section 1104 is not a specific exemption by statute within the meaning of Exemption (3) of the Information Act.

We are not unmindful that many important regulatory statutes, such as the Federal Communications Act and the Natural Gas Act invest agencies of government with authority to act upon the basis of the public convenience and necessity, or the public interest; but in so legislating Congress has guided action under these general standards by requiring hearings, with findings supported by evidence directed to the decisional catalyst so phrased, followed by the right of judicial review of the validity, procedurally and substantively, of the action taken. Nothing of the sort is attached to a determination of non-disclosure under section 1104. Even were we in error in holding action under that provision not within Exemption (3), such action in our opinion would require that the courts build upon the section at least procedural safeguards for review of the reasons for the determination, supported by findings to enable the court to appraise, as under the Information Act, the validity of non-disclosure.

V

In holding that Exemption (3) does not prevent disclosure of the SWAP reports we realize that appellants desire to press their claim under Exemption (7), especially in light of our decision in Weisberg v. Department of Justice, 160 U.S.App.D.C. 71, 489 F.2d 1195 (1973) (en banc). Therefore, we affirm the summary judgment for appellees insofar as appellants rely upon Exemption (3) but remand the case for consideration of Exemption (7) or any other defense to disclosure appellants may raise except Exemptions (1) and (3).

Order granting summary judgment to appellees on Count I is affirmed, and case in other respects remanded to District Court for further proceedings not inconsistent with this opinion.

ROBB, Circuit Judge,

dissenting:

The Federal Aviation Administration is required by law “to promote safety of flight of civil aircraft in air commerce” by the issuance of standards, rules and regulations. 49 U.S.C. § 1421(a). Under 49 U.S.C. § 1425(b) the Administrator is also required to employ inspectors who shall advise and cooperate with air carriers in the inspection and maintenance of aircraft, aircraft engines, propellers, and appliances used in air transportation. To carry out these mandates the FAA developed the Systemsworthiness Analysis Program (SWAP).

SWAP investigative teams composed of highly trained and experienced FAA inspectors make periodic visitations to certified air carriers to inspect and analyze their maintenance and safety operations. A SWAP inspection covers the entire operation of the carrier being studied, including such matters as flight crew training, non-flight crew training, airport and communications facilities, flight operations policies and procedures, air carrier records and crew scheduling, and check airmen and examiners. See SWAP Handbook, FAA Order 8000.3C. The investigative team works in close cooperation with airline management to find any area of maintenance, operations, management or performance which needs improvement. To facilitate cooperation and the full and frank disclosure by the airline upon which the system depends, the SWAP program operates with the understanding between the airlines and the FAA that the contents of SWAP reports will not be released to the public. FAA Order 8000.3C para. 204. The findings of a SWAP inspection team are disclosed to the operator under examination, to enable that operator to discuss them intelligently, but they are not made available to any other operator.

Against this background the airlines, invoking section 1104 of the Federal Aviation Act of 1958, 49 U.S.C. § 1504, objected to the public disclosure of SWAP reports. The airlines stated:

As has been set forth by the FAA in a memorandum to its regions dated February 7, 1967, “The SWAP Program requires a cooperative effort on both the part of the company and FAA if it is to work effectively.” Information freely given to the FAA SWAP team by air carrier management personnel is not specifically required by the FAR’s [Federal Aviation Regulations].
If public disclosure of the SWAP reports were made, the interests of aviation safety would be in danger of being subordinated in some degree to legal considerations in the presentation of information to the FAA. The present practice of nonpublic submissions, which includes even tentative findings and opinions as well as certain factual material, encourages a spirit of openness on the part of airline management which is vital to the promotion of aviation safety — the paramount consideration of airlines and government alike in this area.

(J.A. 100.)

The Administrator sustained the objection, holding that disclosure of SWAP reports “would adversely affect the interests of the airline being investigated and is not required in the interest of the public.” I think the Administrator’s ruling was justified by exemption (3) of the Freedom of Information Act, 5 U.S.C. § 552(b)(3).

Congress did not intend the Freedom of Information Act to repeal all other statutes which restricted public access to government records. Thus, Senator Long, Chairman of the Senate Judiciary Committee’s Subcommittee on Administrative Practice and Procedure, and a leading proponent of the Freedom of Information Act stated:

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.

Hearings on S. 1166 and S. 1663 (in part), Before the Subcomm. on Administrative Practice and Procedure of the Senate Judiciary Committee, 88th Cong., 1st Sess. 6 (1963). Again, in explaining exemption (3) the House Committee on Government Operations noted 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.” (H.R.Rep.No. 1497, 89th Cong., 2d Sess. 10, U.S.Code Cong. & Admin.News 1966, p. 2427.) (Emphasis added.) Commenting on the House Report the Attorney General’s memorandum on the Public Information Section of the Administrative Procedure Act (June 1967) stated:

The reference to “nearly 100 statutes” apparently was inserted in the House report in reliance upon a survey conducted by the Administrative Conference of the United States in 1962. This survey concluded that there were somewhat less than 100 statutory provisions which specifically exempt from disclosure, prohibit disclosure except as authorized by law, provide for disclosure only as authorized by law, or otherwise protect from disclosure. The reference therefore indicates an intention to preserve whatever protection is afforded under other statutes, whatever their terms. (Emphasis added.)

Section 1104 is tailored to the needs and problems of the Federal Aviation Administration — needs and problems which are well illustrated by this case. I cannot believe that this specific statute was overridden or repealed by the general terms of the Freedom of Information Act. The earlier and specific statute should prevail over the later more general enactment. In particular, the later act should not be read to delete the “public interest” standard from every disclosure statute in which it appears— including section 1104.

The Circuit Court of Appeals for the 5th Circuit has held that exemption (3) authorizes the Federal Aviation Administration to withhold information pursuant to section 1104, 49 U.S.C. § 1504. Evans v. Dept. of Transportation, 446 F.2d 821 (5th Cir. 1971), cert. denied, 405 U.S. 918, 92 S.Ct. 944, 30 L.Ed.2d 788 (1972). I agree.

I respectfully dissent.

      . See section 601(a) of the Federal Aviation Act, as amended, 49 U.S.C. § 1421(a).

      . Section 1104 of the Act reads:
      Any person may make written objection to the public disclosure of information contained in any application, report, or document filed pursuant to the provisions of this chapter or of information obtained by the Board or the Administrator, pursuant to the provisions of this chapter, stating the grounds for such objection. Whenever such objection is made, the Board or Administrator shall order such information withheld from public disclosure when, in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public.
      49 U.S.C. § 1504 (1970).

      . No appeal is before us except from the grant of summary judgment for appellees on Count I.

      . This Presidential order had served as the basis for classification of information “which requires protection in the interests of national defense.”

      . Aside from all past and future SWAP reports.

      . Attorney General’s Memorandum at 33. But the Attorney General went on to say:
      The reference to “nearly 100 statutes” apparently was inserted in the House report in reliance upon a survey conducted by the Administrative Conference of the United States in 1962. This survey concluded that there were somewhat less than 100 statutory provisions which specifically exempt from disclosure, prohibit disclosure except as authorized by law, provide for disclosure only as authorized by law, or otherwise protect from disclosure. The reference therefore indicates an intention to preserve whatever protection is afforded under other statutes, whatever their terms. For examples of the variety of statement of such provisions compare 18 U.S.C. 1905; 26 Ü.S.O. 6108; 42 U.S.C. 2000e-8, 2161-2166; 43 U.S.C. 1398; 44 U.S.C. 397; and 50 U.S.C. 403g.
      Thus, the House Report’s mention of “somewhat less than 100 statutory provisions” was quite indefinite. Moreover, as we stated in Getman v. N. L. R. B., 146 U.S.App.D.C. 209, 450 F.2d 670, 673, n.8 (1971), the Senate Report is to be preferred for the reason stated in Getman.

      Appellants’ reliance upon the examples given by the Attorney General of statutes which may come within Exemption (3) also is excessive. Each of them can be distinguished from section 1104 of the Aviation Act;
      18 U.S.C. § 1905 is a criminal statute prohibiting unauthorized disclosure of any information by a federal employee. There is nothing in the section which prevents the operation of the Information Act. It does not fall within the ambit of Exemption (3). M. A. Schapiro v. S. E. C., 339 F.Supp. 467 (D.D.C.1972); Frankel v. S. E. C., 336 F.Supp. 675 (S.D.N.Y.1971), rev’d on other grounds 460 F.2d 813 (2d Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 125, 34 L.Ed.2d 146 (1972).
      26 U.S.C. § 6103 represents the congressional judgment that federal income tax return should remain confidential except in very limited and prescribed circumstances. This statute embodies the specificity which section 1104 of the Aviation Act lacks. Federal Sav. & Loan Insur. Corp. v. Krueger, 55 F.R.D. 512, 514 (N.D.Ill.1972).
      42 U.S.C. § 2000e-8(e) is similar to 18 U.S.C. § 1905, supra, in that it prohibits the unauthorized disclosure by any EEOC employee of information dealing with unlawful labor practices. This statute, however, has a built-in time limit to non-disclosure, for it only prohibits disclosure “prior to the institution of any [unlawful labor practice] proceeding.”
      42 U.S.C. §§ 2161-2166 is discussed in the body of this opinion.
      43 U.S.C. § 1398 presents yet another situation different from section 1104. Section 1398 provides that confidential information submitted by witnesses before the Public Lands Commission shall remain confidential. The distinguishing mark of the section, as contrasted with section 1104, is that no discretion is vested in the Public Lands Commission.
      44 U.S.C. § 397 is now codified as 44 U.S.C. §§ 2103-2111 and is quite specific with respect to the powers and duties of the Archivist of the United States and the Administrator of General Services. The statute grants very little discretion to either official regarding whether public documents should be disclosed or remain confidential. See Nichols v. United States, 460 F.2d 671, 673-674 (10th Cir. 1972).
      Finally, 50 U.S.C. § 403g concerns one aspect of the duties of the director of the Central Intelligence Agency. By this section Congress, in the interest of national security, specifically exempts the CIA from disclosing, inter alia, the names, positions, functions or salaries of its employees as was required by 5 U.S.C. § 654 (1958), repealed by Pub.L. 86-626, 74 Stat. 427 (July 12, 1960).

      . Gemsco, Inc. v. Walling, 324 U.S. 244, 260, 65 S.Ct. 605, 89 L.Ed. 921 (1945); Addison v. Holly Hill Co., 322 U.S. 607, 616-617, 64 S.Ct. 1215, 88 L.Ed. 1488 (1944).

      . See Bristol-Myers Co. v. F.T.C., 138 U.S.App.D.C. 22, 424 F.2d 935, 938 (1970).