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First Amendment Library:
Alan B. Morrison


We granted certiorari[1] in this case in order to determine whether Exemption 3 of the Freedom of Information Act, 5 U. S. C. § 552 (b) (3),[2] permits nondisclosure *257 to respondents of certain reports in the files of the Federal Aviation Administration. This exemption provides that material need not be disclosed if "specifically exempted from disclosure by statute." The reports are known as Systems Worthiness Analysis Program (SWAP) Reports.[3] They consist of analyses made by representatives of the FAA concerning the operation and maintenance performance of commercial airlines. Over-sight and regulation of air travel safety is the responsibility of the FAA, § 601 of the Federal Aviation Act of 1958, 72 Stat. 775, as amended, 49 U. S. C. § 1421. The FAA claims the documents are protected from disclosure *258 by virtue of § 1104 of the Federal Aviation Act of 1958, 49 U. S. C. § 1504.[4]The facts of the case, in its present posture,[5] are quite simple. During the summer of 1970, in connection with a study of airline safety being conducted by them, the respondents, associated with the Center for the Study of Responsive Law, requested that the FAA make available certain SWAP Reports. The FAA declined to produce the documents. In accordance with established procedures adopted by the FAA, the respondents then filed timely notice of administrative appeal in August 1970. Several months later, while this administrative appeal was pending, the Air Transport Association, on behalf of its airline *259 members, requested that the FAA make no public disclosure of the SWAP Reports. The Association noted that, in a prior memorandum of its own staff, the FAA had pointed out that " `[t]he SWAP Program requires a cooperative effort on both the part of the company and FAA if it is to work effectively,' " and argued that "[t]he present practice of non-public 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." In February 1971, the FAA formally denied respondents' request for the SWAP Reports. It took the position that the reports are exempt from public disclosure under 5 U. S. C. § 552 (b) (3), the section at issue here. As previously noted, that section provides that such material need not be disclosed under the Freedom of Information Act when the material is specifically exempted from disclosure by statute. The FAA noted that § 1104 of the Federal Aviation Act of 1958 permits the Administrator to withhold information, public disclosure of which, in his judgment, would adversely affect the interests of the objecting party and is not required to be disclosed in the interest of the public. The FAA also based its denial of these data on the exemption for intra-agency memoranda (5 U. S. C. § 552 (b) (5)), the exemption for investigatory files compiled for law enforcement purposes (§ 552 (b) (7)), and, finally, the exemption for documentation containing trade secrets and commercial or financial information of a privileged or confidential nature (§ 552 (b) (4)). The FAA's answer also explained its view of the need for confidentiality in SWAP Reports:

"The effectiveness of the in-depth analysis that is the essence of SWAP team investigation depends, to *260 a great extent, upon the full, frank and open cooperation of the operator himself during the inspection period. His assurance by the FAA that the resulting recommendations are in the interest of safety and operational efficiency and will not be disclosed to the public are the major incentives impelling the operator to hide nothing and to grant free access to procedures, system of operation, facilities, personnel, as well as management and operational records in order to exhibit his normal course of operations to the SWAP inspectors."
Respondents then sued in the District Court, seeking, inter alia, the requested documents. The District Court held that "the documents sought by plaintiffs . . . are, as a matter of law, public and non-exempt within the meaning of 5 United States Code [§] 552, and plaintiffs are entitled to judgment . . . as a matter of law."A divided Court of Appeals affirmed the judgment of the District Court "insofar as appellants rely upon Exemption (3)," but remanded the case for consideration of other exemptions which the FAA might wish to assert. 162 U. S. App. D. C. 298, 498 F. 2d 1031 (1974). Examining first what it felt was the ordinary meaning of the language of Exemption 3, the Court of Appeals held that its language required the exempting statute relied on to specify or categorize the particular documents it authorizes to be withheld. Because § 1104 delegated "broad discretionary authority" under a "public interest" standard, it was held not within the scope of Exemption 3. The Court of Appeals distinguished this Court's decision in EPA v. Mink, 410 U. S. 73 (1973), on the ground that the exemption involved in that case was construed to be a specific reference by Congress to a definite class of documents, namely those that must be kept secret " `in the *261 interest of the national defense or foreign policy,' " 162 U. S. App. D. C., at 300, 498 F. 2d, at 1033. The Court of Appeals read the Act as providing a comprehensive guide to congressional intent. One of the Act's major purposes was seen as intending to eliminate what it characterized as vague phrases such as "in the public interest" or "for good cause" as a basis for withholding information. Under these circumstances, the court concluded that § 1104 cannot be considered a specific exemption by statute within the meaning of Exemption 3 of the Freedom of Information Act.


The plaintiff-appellees in this case attack, as violative of the First and Fourteenth Amendments,[1] that portion of § 54-524.35 of Va. Code Ann. (1974), which provides that a pharmacist licensed in Virginia is guilty of unprofessional *750 conduct if he "(3) publishes, advertises or promotes, directly or indirectly, in any manner whatsoever, any amount, price, fee, premium, discount, rebate or credit terms . . . for any drugs which may be dispensed only by prescription."[2] The three-judge District Court declared the quoted portion of the statute "void and of no effect," Jurisdictional Statement, App. 1, and enjoined the defendant-appellants, the Virginia State Board of Pharmacy and the individual members of that Board, from enforcing it. 373 F. Supp. 683 (ED Va. 1974). We noted probable jurisdiction of the appeal. 420 U. S. 971 (1975).


Since the decision in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976), in which the Court held for the first time that the First Amendment precludes certain forms of regulation of purely commercial speech, we have on a number of occasions addressed the constitutionality of restraints on advertising and solicitation by attorneys. See In re R. M. J., 455 U. S. 191 (1982); In re Primus, 436 U. S. 412 (1978); Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978); Bates v. State Bar of Arizona, 433 U. S. 350 (1977). This case presents additional unresolved questions regarding the regulation of commercial speech by attorneys: whether a State may discipline an attorney for soliciting business by running newspaper advertisements containing nondeceptive illustrations and legal advice, and whether a State may seek to prevent potential deception of the public by requiring attorneys to disclose in their advertising certain information regarding fee arrangements.