J. SKELLY WRIGHT, Circuit Judge:

Appellants in this case challenge on both constitutional and statutory grounds the Metropolitan Police Department's policy of routinely transmitting to the Federal Bureau of Investigation the fingerprint cards and accompanying identification data of individuals who are arrested in the District of Columbia. Although we believe there is substantial merit to appellants' constitutional contentions, we do not premise our holding on those grounds, for we believe there are narrower statutory grounds on which we must interdict this indiscriminate dissemination of arrest records in the absence of a specific FBI request for particular data to be used by the FBI or other law enforcement officials for strictly law enforcement purposes.

I

On January 7, 1971, shortly before the effective date of the District of Columbia Court Reform and Criminal Procedure Act of 1970, appellants — four individuals arrested for and charged with local criminal offenses — brought a class action for injunctive and declaratory relief to enjoin appellees — the chief of Police and the Director of the Central Records Division of the Washington, D.C., Metropolitan Police Department — from transmitting appellants' arrest records to the FBI and to request the return of those records already transmitted. Plaintiffs-appellants asserted that the Metropolitan Police lacked a statutory basis for engaging in this practice, which was also allegedly specifically prohibited by the "Duncan Ordinance," a regulation promulgated by the District's Board of Commissioners to govern the distribution of arrest records in this jurisdiction. Plaintiffs-appellants further asserted that the preconviction or postexoneration dissemination of their arrest records abridged their constitutional rights to due process, privacy, and the presumption of innocence.

Appellant Utz was arrested on January 7, 1971 and was charged with possession of marijuana. Her case was subsequently "no papered" by the United States Attorney, and she allegedly represents the class of individuals ultimately exonerated of the charges lodged against them. Appellant Boyd was arrested on January 6, 1971 and was charged with petit larceny. At the time the complaint in this case was filed he had been released on a personal bond and was awaiting trial in the Court of General Sessions; although a nolle prosequi was entered on this charge before the District Court's ruling in this case, he allegedly represents the class of individuals who have not yet been brought to trial and who are thus presumed to be innocent of charges pending against them. Appellant Leon M., a juvenile who brought his action by his mother and next friend, Jean M., was arrested on October 27, 1970 for unauthorized use of a motor vehicle, and he allegedly represents the class of juveniles charged in the Juvenile Branch of the Family Division of the Superior Court for the District of Columbia. The charge against Leon M. was dismissed on December 14, 1970, when he entered a plea of guilty to another traffic offense and he was sentenced to 60 days of court supervision and traffic school. Appellant Bolling was arrested on November 20, 1970 and charged with possession of numbers slips. He entered a plea of guilty to this charge on December 30, 1970 and was sentenced to one year of probation; he allegedly represents those individuals who are actually found guilty of the offenses for which they were arrested, and premises his challenge to the Metropolitan Police Department's practices solely on statutory grounds.

Before the arrests which formed the predicate for this case, none of the named plaintiffs-appellants had a criminal record. Although they do not allege that their arrests were made without probable cause and thus do not seek expungement of their arrest records, appellants contend that the dissemination of those records to the FBI, and inevitable nationwide redissemination by the FBI, will cause them irreparable injury. More particularly, appellants in their complaint maintain that fingerprint cards (containing data identifying the person arrested and information concerning the arrest) of all persons arrested and fingerprinted by the Metropolitan Police Department are routinely transmitted to the FBI, regardless of whether the charges are dismissed, "no papered," "nollied," reduced, or terminated through an acquittal, and that this dissemination normally transpires before a court disposes of the case. These data submitted to the FBI are allegedly added to the FBI's Computerized Criminal History File (part of the FBI's National Crime Information Center), from which a master "rap" sheet is prepared listing each person's name, his identifying data, the date of the arrest, and the offense or offenses for which he was arrested; the "rap" sheet is allegedly disseminated upon request to over 14,500 public and private agencies including the United States Civil Service Commission, the Armed Services, banks, and state and local governments, which allegedly utilize that information adversely for employment and promotion purposes to the detriment of appellants and other individuals listed in the FBI's criminal data bank.

Both plaintiffs-appellants and defendants-appellees moved for summary judgment and submitted the same affidavit of the Director of the Central Records Division of the Metropolitan Police Department describing the practice of that Department with respect to the dissemination of arrest records to the FBI. The Director averred that the Metropolitan Police Department "routinely" forwarded to the FBI the arrest records of all adults who are "charged with a felony or violation of laws against the United States" or "who because of the type of offense committed and/or records of arrest are likely to be wanted by other local or federal law enforcement agencies" or who are arrested for "participating in mass demonstrations," as well as the arrest records of all juveniles "16 years or older who have been charged with a felony." He also reported that as of October 1971, "all appropriate records forwarded to the FBI are subsequently supplemented with entries that reflect Court disposition." The parties amplified on this affidavit by stipulating that the fingerprint cards of these arrestees are sent to the FBI "within several days of the arrest and generally before trial," as are the arrest records of "most misdemeanants, excepting traffic violat[ors], charged with violations of the D.C. Code and arrested by the Metropolitan Police." It was also stipulated that the arrest records of appellants Leon M. and Bolling had already been submitted to the FBI, that the records of appellants Utz and Boyd would have been routinely sent to the FBI but for an agreement between counsel not to do so pending the outcome of this case, and that although the FBI will return these records to the Metropolitan Police Department at the latter's request, the FBI will continue to keep and disseminate all records, regardless of court disposition, unless such a return of the records is requested by the Metropolitan Police.

With the case in this posture District Judge Gesell granted appellees' motion for summary judgment, reasoning in an oral opinion that appellants' constitutional arguments lacked "substantiality" and that the "Duncan Ordinance" was inapplicable to the relationship between the Chief of Police and the FBI.

II

In framing the constitutional question which appellants present, it is important to state with specificity what is and what is not involved in this case. First, appellants do not seek expungement of the arrest records maintained by the Metropolitan Police Department. Since they do not contend that their arrests were constitutionally invalid, they admit that the mere maintenance of a record of that fact does not violate their right to due process or allow the Police Department to retain the tainted product of a Fourth Amendment violation. Indeed, appellants recognize that there are situations in which the fact of prior arrests — even those which did not culminate in a conviction — may be legitimately employed in the criminal justice process, whether by police investigators, judicial officers, or probation or other law enforcement officials. In such situations, there are substantial procedural safeguards and significant judicial oversight which may check any potentially improper use of the information.

Second, appellants do not challenge the constitutional propriety of disseminating particular arrest records to the FBI when there is a specific law enforcement need for those data. They recognize that the constitutional interests of privacy and due process which they assert must be protected may nevertheless be balanced against legitimate and weighty state interests, and that there will likely be situations in which the latter will override an individual's interest in preventing dissemination.

Finally, appellants do not suggest that the Metropolitan Police Department is prohibited from routinely disseminating more limited categories of data to the FBI. For example, routinely transmitting to the FBI the fingerprints or names (without identifying data) of individuals apprehended in this jurisdiction may subserve a legitimate state interest in that it might disclose whether the individual is a fugitive from or sought as a suspect in other jurisdictions on other crimes, and thus might facilitate a determination as to whether the individual should be held while that jurisdiction undertakes proceedings to effectuate a return of the arrestee.

Thus, appellants are interjecting a relatively narrow constitutional claim: that the routine preconviction or post-exoneration dissemination to the FBI of their arrest records — including not only their fingerprints, but also data identifying the person arrested and information concerning the details and surrounding circumstances of the arrest — violates their constitutional rights to due process, privacy, and the presumption of innocence, at least as long as the FBI continues to redisseminate that data for other than law enforcement — and particularly for employment and licensing — purposes.

Nevertheless, in granting summary judgment for appellees in this case, the District Court dismissed appellants' constitutional claims as "makeweight" which lacked "constitutional substantiality." This view of the merits of the constitutional contentions was apparently expressed with the District Judge's then-recent decision of Menard v. Mitchell, 328 F.Supp. 718 (1971), in mind. In Menard, Judge Gesell, exhibiting considerable sensitivity to the constitutional questions presented by the dissemination of information to non-federal and non-law enforcement recipients by the federal government, nevertheless refused to order the FBI to expunge Menard's arrest record. Judge Gesell believed that those constitutional questions could be avoided by construing 28 U.S.C. § 534 (1970), the statute under which the FBI conducts its reciprocal exchange of criminal records, not to "authorize dissemination of arrest records to any state or local agency for purposes of employment or licensing." Thus, Judge Gesell cast the constitutional question in the present case as one involving the power of the Chief of Police to disseminate arrest records to the FBI for law enforcement purposes, when the FBI might subsequently make that data available only to the District of Columbia or Federal government for employment purposes. Judge Gesell found himself

unable to see any constitutional substantiality to this contention. The period is limited. The law-enforcing needs appear to the Court to greatly transcend the inconvenience if any to individuals seeking jobs from the Federal Government while they are under indictment.

As I have indicated in Menard, I feel that there is substantial authority for the Federal Executive Branch, through the President, as he has by appropriate Executive Orders, to take action to regulate and examine into the qualifications of individuals seeking Federal employment.

* * * * * *

It is also clear that the concern in the complaint that indirectly through the FBI arrest record information would be disseminated to private employers in this city or elsewhere is mistaken inasmuch as the Bureau is operating consistent with the Court's observation in Menard. The Court takes judicial notice of the fact that the Bureau is not disseminating information to private employers and is taking appropriate steps, as it has in the past, to police any inappropriate action by police departments who obtain information in the name of law enforcement and who may be tempted to pass it on to private employers.

Although we disagree with the District Court's pronouncement that utilization, pursuant to presidential order in the name of national security, of unexpurgated arrest information by the Federal government for employment purposes raises no substantial constitutional questions, we are not faced with that comparatively limited constitutional inquiry. Rather, we note that Congress has legislatively overruled the limitations which Judge Gesell had found on the FBI's power to disseminate information outside of law enforcement channels. Although the FBI, shortly after the District Court's decision in Menard, issued a directive stating that it would comply with that decision, Congress immediately responded with Pub.L. No. 92-184, 85 Stat. 627, 642 (1971), which provides that

[t]he funds provided in the Department of Justice Appropriation Act, 1972, for Salaries and Expenses, Federal Bureau of Investigation, may be used, in addition to those uses authorized thereunder, for the exchange of identification records with 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, any such exchange to be made only for the official use of any such official and subject to the same restriction with respect to dissemination as that provided for under the aforementioned Act.

The FBI, pursuant to this authorization, announced that it would resume its prior practice of disseminating arrest records to banks and state and local governments for employment and licensing purposes if permissible under state law and approved by the Attorney General. See Federal Bureau of Investigation, Letter to All Fingerprint Contributors, Jan. 20, 1972. Indeed, the Justice Department has now promulgated regulations which provide that

(a) Criminal history record information contained in any Department of Justice criminal history record information system will be made available:

* * * * * *

(3) Pursuant to Public Law 92-544 (86 Stat. 115) for use in connection with licensing or local/state employment or for other uses only if such dissemination is authorized by Federal or state statutes and approved by the Attorney General of the United States. When no active prosecution of the charge is known to be pending arrest data more than one year old will not be disseminated pursuant to this subsection unless accompanied by information relating to the disposition of that arrest.

Moreover, as we previously noted in Menard v. Saxbe, 162 U.S.App.D.C. 284, 498 F.2d 1017 (1974), which reversed Judge Gesell's decision denying Mr. Menard's attempt to have his records with the FBI expunged, the FBI does not, in fact, enforce its statutory mandate to exercise supervision and control over the propriety of the uses to which contributing agencies put the reciprocal information they receive from the FBI.

Appellants thus contend that they are irreparably injured when their preconviction or post-exoneration arrest records are disseminated to the FBI for nationwide redistribution for both law enforcement and employment and licensing purposes. We agree that there is a substantial bundle of constitutional rights which may be unnecessarily infringed when such arrest records are transmitted to the FBI with the knowledge that they will be retransmitted to a multitude of organizations for a multitude of purposes, all of which are susceptible of abuse.

In our constitutional scheme, we operate under the salutary principle that an individual is presumed innocent of the charges of which he stands accused unless he is found guilty via a process replete with substantial procedural safeguards. An arrest record, without more, is a fact which is absolutely irrelevant to the question of an individual's guilt. As the Supreme Court has cautioned:

The mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense. When formal charges are not filed against the arrested person and he is released without trial, whatever probative force the arrest may have had is normally dissipated.

Schware v. Board of Bar Examiners, 353 U.S. 232, 241, 77 S.Ct. 752, 757, 1 L.Ed.2d 796 (1957). And as one district court has eloquently observed:

Unresolved arrest records generally may well have significance for law enforcement purposes. They provide legitimate leads and questionable background information and may properly assist in resolving criminal actions. But charges resulting in acquittal clearly have no legitimate significance. Likewise, other charges which the government fails or refuses to press or which it withdraws are entitled to no greater legitimacy. They lose any tendency to show probable cause and should not be bootstrapped into any unearned and undeserved significance. Actually, a collection of dismissed, abandoned or withdrawn arrest records are no more than gutter rumors when measured against any standards of constitutional fairness to an individual and, along with records resulting in an acquittal are not entitled to any legitimate law enforcement credibility whatsoever.

Although the value of arrest records for law enforcement purposes has been generally, but not invariably, assumed despite the apparent conflict of this assumption with this constitutional presumption of innocence, here we are confronted with the government dissemination of arrest records in a situation in which it is known they will be utilized for employment and licensing purposes. Even if such records, as disseminated, were to include the actual disposition of the charges — and such dispositions frequently are not, in fact, included — the government knows that a derogatory inference will often nevertheless be drawn that the person who was arrested is also guilty of the crime charged. The mere fact of an arrest may impair or cloud a person's reputation, and "[e]ven to be acquitted may damage one's good name if the community receives the verdict with a wink and chooses to remember defendant as one who ought to be convicted." Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 222, 93 L.Ed. 168 (1948). Recent decisions by this court have acknowledged the considerable barriers that an arrest record interposes to employment, educational, and professional licensing opportunities, and the regrettable fact that "so long as there exists an employable pool of persons who have not been arrested, employers will find it cheaper to make an arrest an automatic disqualification for employment"; available evidence suggests that "employers cannot or will not distinguish between arrests resulting in conviction and arrests which do not." Indeed, appellees themselves imply that the fact of arrest should generally be taken as indicative of guilt:

There are myriad factors that may result in termination of the criminal process in a manner which in no way detracts from the proper use of the record of an arrest by law enforcement agencies. For example, witnesses may be incapacitated or unavailable, charges may be dismissed because of plea bargaining or considerations of leniency, and the government may have failed to preserve its evidence in a manner conducive to effective prosecution.

Of course, it is not inconceivable that the individual may also be absolutely innocent of any wrongdoing whatsoever. The problem is that the constitutionally improper inference of guilt will be the one frequently drawn. And even if, as the government contends, all such arrest records are nevertheless useful for law enforcement purposes, that does not necessarily justify their dissemination for employment or licensing purposes. Due process obligates the government to accord an individual the opportunity to disprove potentially damaging allegations before it disseminates information that might be used to his detriment. The proper forum for definitively adjudicating an individual's guilt or innocence is a trial that conforms to constitutional strictures; if the government aborts that procedure or if the individual is otherwise vindicated at trial, the Constitution requires that he be treated as though he engaged in no criminal activity. For the government to disseminate an arrest record pertaining to the allegedly criminal episode, when it knows that employers may infer that the individual was guilty rather than innocent of the crime, effectively permits the government to inflict punishment despite the fact that guilt was not constitutionally established. And although it would be naive to proclaim that all individuals who are not found guilty are in fact innocent of wrongdoing, many — particularly those like appellants with no prior criminal record — will fall into the category of individuals erroneously caught up in the criminal process. "[T]here is [a] limit beyond which the government may not tread in devising classifications that lump the innocent with the guilty." Yet in disseminating arrest records for use by banks and state and local governments for employment and licensing purposes, and in using them for its own employment purposes, the federal government would appear to be in effect lumping the innocent and guilty together, for all those arrested are likely to be denied opportunities open to individuals who have never run afoul of the law. "A government agency may not escape responsibility for improper use of material disseminated by it simply because the improper use is not mandatory and is in fact made by a third party".

Whatever compelling interest the government might have in disseminating preconviction or post-exoneration arrest records for law enforcement purposes, it is difficult to divine any substantive interest — whether compelling or merely rational — that the government might have in disseminating such records to private or other government employers where there is no indication that the individual is in fact guilty of criminal conduct yet where it is likely that the prospective employer will utilize the mere fact of arrest to disqualify the individual from employment for which he is otherwise absolutely qualified. Indeed, one court, holding that a private employer's practice of denying employment to individuals with arrest records violates Title VII of the Civil Rights Act of 1964 because "any policy that disqualifies prospective employees because of having been arrested once, or more than once, discriminates in fact against [N]egro applicants," Gregory v. Litton Systems, Inc., 316 F.Supp. 401, 403 (C.D. Cal. 1970), modified on other grounds and affirmed as modified, 472 F.2d 631 (9th Cir. 1972), found as a matter of fact that

[t]here is no evidence to support a claim that persons who have suffered no criminal convictions but have been arrested on a number of occasions can be expected, when employed, to perform less efficiently or less honestly than other employees. In fact, the evidence in the case was overwhelmingly to the contrary. Thus, information concerning a prospective employee's record of arrests without convictions, is irrelevant to his suitability or qualification for employment.

Id. at 402-403. If it is illegal for employers (including state and local government employers who are within the ambit of Title VII) to utilize arrest records not culminating in convictions to deny an individual opportunities open to those with no such records, it would appear to be just as illegal for the government to furnish the employer with the information on which such illegal actions may be based, at least when there is no legitimate law enforcement justification for providing the employer with the data.

However, to hold that appellees' routine dissemination of preconviction and post-exoneration arrest records to the FBI, even when supplemented by disposition notations as they occur, transgresses appellants' constitutional rights if the dissemination occurs with full knowledge that the FBI will redisseminate that information for other than law enforcement purposes, would in effect be to hold that Congress' recent statute authorizing that practice of the FBI and the Justice Department's implementing regulations are also unconstitutional. Thus, despite our severe doubts about the constitutionality of this practice, we are reluctant to base our decision on those grounds, particularly in the absence of the FBI as a party defendant and full briefing on the question from the Attorney General. However, appellants are also challenging the Metropolitan Police Department's actions on statutory grounds, and there is a well-established judicial tenet that cases should be decided on available nonconstitutional grounds, as well as a sound principle that statutes should be construed, where possible, to avoid constitutional questions. Since the next section of this opinion will elaborate on the fact that the statute involved in this case — the District of Columbia's "Duncan Ordinance" — may be construed, especially against this constitutional backdrop, to avoid these substantial questions, it is on those alternative statutory grounds that we therefore base our opinion.

III

On October 31, 1967, the "Duncan Ordinance," which had been drafted by the select Committee to Investigate The Effect of Police Arrest Records on Employment Opportunities in the District of Columbia, was adopted by the District of Columbia Board of Commissioners. The Duncan Ordinance specifies:

1. That no record, copy, extract, compilation or statement concerning any record relating to any juvenile offender or relating to any juvenile with respect to whom the Metropolitan Police Department retains any record or writing, shall be released to any person for any purpose except as may be provided under D.C. Code, Section 11-1586; provided, that the release of such information to members of the Metropolitan Police Department, and the dissemination of such information by the Metropolitan Police Department to the police departments of other jurisdictions wherein juveniles apprehended in the District of Columbia may reside, shall be authorized; provided further, that the release of such information to individuals to whom the information may relate or to the parents or guardians or duly authorized attorneys of such individuals, shall be authorized in those cases in which applicants therefor present documents of apparent authenticity indicating need for such information for reasons other than employment. The term "employment", in the context of this paragraph, shall not include military service.

2. That unexpurgated adult arrest records, as provided under D.C. Code, Section 4-134a, shall be released to law enforcement agents upon request, without cost and without the authorization of the persons to whom such records relate and without any other prerequisite, provided that such law enforcement agents represent that such records are to be used for law enforcement purposes. The term "law enforcement agent" is limited in this context to persons having cognizance of criminal investigations or of criminal proceedings directly involving the individuals to whom the requested records relate. The term includes judges, prosecutors, defense attorneys (with respect to the records of their client defendants), police officers, Federal agents having the power of arrest, clerks of courts, penal and probation officers and the like. It does not include private detectives and investigators; personnel investigators, directors and officers; private security agents or others who do not ordinarily participate in the process involving the detection, apprehension, trial or punishment of criminal offenders.

3. That, subject to the foregoing, adult arrest records, as provided under D.C. Code, Section 4-134a, shall be released in a form which reveals only entries relating to offenses which have resulted in convictions or forfeitures of collateral.

4. That, subject to the foregoing, adult arrest records, as provided under D.C. Code, Section 4-134a, shall be released in a form which reveals only entries relating to offenses committed not more than 10 years prior to the date upon which such records are requested; except that, where an offender has been imprisoned during all or part of the preceding 10-year period, the record shall include entries relating to such earlier conviction.

5. That, subject to the foregoing, copies or extracts of adult arrest records, as provided under D.C. Code, Section 4-134a, or statements of the non-existence of such records shall be released to applicants therefor upon the payment of fees to be based upon the cost of editing and producing such copies, extracts or statements; provided, that applicants who are not the persons to whom such records may relate must, in addition to the required fees, present releases in appropriate form executed by the persons to whom the records may relate; provided further, that no fee shall be required with respect to any record solicited by any agent of the Federal or District of Columbia Government for a governmental purpose.

6. That Article 47 of the Police Regulations of the District of Columbia be amended to provide that it shall be an offense punishable by a fine not to exceed $50.00, for any person to require as a condition of employment the production of any arrest record or copy, extract or statement thereof at the expense of any employee or applicant for employment to whom such record may relate.

As has been recognized in the past, the Duncan Ordinance establishes the guidelines which control the dissemination of arrest records in this jurisdiction; as applied to the issue before us, it is clear that the Ordinance prohibits the practice to which appellants object.

Appellant Leon M. asserts that Section 1 of the Duncan Ordinance, which except for three narrow and explicit qualifications commands that juvenile arrest records shall not be released "to any person for any purpose," prevents the routine dissemination of such records to the FBI. Since we believe that intervening developments have mooted appellant Leon M.'s ability to challenge the Metropolitan Police Department's actions, we need not address the contours of this provision or its interaction with D.C. Code § 16-2333(a) (1973).

Although the Duncan Ordinance appears on its face to accord adults less protection than it accords juveniles, it nevertheless prevents the routine dissemination of adult arrest records to the FBI. Section 2 of the Duncan Ordinance mandates that such records shall be released to "law enforcement officers" without any prerequisite such as paying the costs of producing and editing the records or securing authorization from the individuals to whom the records relate. However, such release is only to be made "upon request." The FBI does not request the records which it is provided by contributing agencies; indeed, when asked whether the federal government desired to protect through intervention any interest it might have in this proceeding, the United States Attorney stated:

The United States has no interest which it seeks to protect which would require its intervention in to Utz v. Wilson * * *.

* * * [I]t is the position of the United States of America that whether the Metropolitan Police Department or any other law enforcement agency submits arrest fingerprints to the Federal Bureau of Investigation is a matter solely within the jurisdiction of the arresting agency. Submission of such records to the Federal Bureau of Investigation is a voluntary action on the part of the law enforcement agency and the Federal Bureau of Investigation does not request the submission of such records. * * * In short, adherence by the Metropolitan Police Department to the Duncan Ordinance is consistent with the position of the Federal Bureau of Investigation.

Moreover, when a law enforcement official requests unexpurgated adult arrest records, the Duncan Ordinance specifies that he must "represent that such records are to be used for law enforcement purposes." However, it is clear that records disseminated to the FBI will also be used by state and local governments and federally insured banks, as well as by the federal government, for employment and licensing purposes in addition to any law enforcement purposes to which the records would be put.

Finally, even if the FBI's reciprocal data exchange program could be shoehorned into the term "request," and the representation which must be made to receive the data were interpreted only to require that some law enforcement use be made of the data rather than that such utilization be exclusive, the FBI would not be a "law enforcement agent" within the narrow definition of Section 2 of the Duncan Ordinance. That term is explicitly "limited * * * to persons having cognizance of criminal investigations or of criminal proceedings directly involving the individuals to whom the requested records relate." Thus, although transfer of an arrest record to the FBI would not contravene the Ordinance if that agency requested information possessed by the Metropolitan Police pertaining to individuals wanted in other jurisdictions or sought data that might be currently used in prosecutions or for sentencing recommendations, the FBI does not stand in that law enforcement role when it merely receives arrest data to store in its master "rap" sheet for potential use in such investigations or prosecutions, to say nothing of the employment and licensing purposes for which those records are obtained.

Absent a specific law enforcement request that would satisfy Section 2 of the Duncan Ordinance, adult arrest records may only be disseminated pursuant to Sections 3 to 5 of the Ordinance. Section 3 limits disclosure of records to those offenses which have resulted in either a conviction or a forfeiture of collateral, and even those records, according to Section 5, may only be released to applicants who "present releases in appropriate form executed by the persons to whom the records may relate." Thus, the routine and unconsented transmittal of the arrest records of all plaintiffs-appellants — including appellant Boyd, who was convicted of the crime for which he was arrested but who did not consent to dissemination of his arrest record for employment purposes — was accomplished in derogation of the apparently specific constraints of the Duncan Ordinance.

Nevertheless, despite this apparent clarity in the language of the Duncan Ordinance, the District Court held that the Ordinance did not extend to the relationship between the FBI and the Metropolitan Police Department:

The Court has examined with great care and frequently the report of the Committee to Investigate the Effect of Police Arrest Records on Employment Opportunities in the District of Columbia, which is the so-called Duncan report that led to the enactment of the Duncan regulation. The Court is totally satisfied that the Duncan ordinance or Duncan regulation has as its essential and key purpose an effort to prevent the availability of arrest records locally to local private employers.

There is next to no discussion of the continuing necessary intimate relations between the Chief of Police and the FBI in this jurisdiction; and a host of extremely important and practical questions would be raised if the literal language of the Duncan ordinance were to be taken as a prohibition against the Chief of Police communicating on arrest record matters with the FBI.

There is such a lack of cognizance of this problem, such a lack of any precision in the ordinance, and so many uncertainties created by attempting to read the ordinance in that broad fashion that the Court has concluded as a matter of law that the Duncan regulation does not have anything to do whatsoever with the relations between the Chief of Police and the FBI with respect to the dissemination of arrest records and reliance on it by the Plaintiffs is erroneous.

In a similar vein, appellees assert that a "fair reading of the Duncan Ordinance will disclose that it is essentially designed to place limitations on the giving of arrest record data to specific private individuals requesting such data."

We are unpersuaded by the argument that the Duncan Ordinance was not intended to have any impact whatsoever on the Metropolitan Police Department's routine transmission of unexpurgated arrest data to the FBI. The language of the Ordinance is itself clear in limiting the dissemination of unexpurgated adult arrest records to "law enforcement agents" — defined as "persons having cognizance of criminal investigations or of criminal proceedings directly involving the individuals to whom the requested records relate" — who "request" the data and who "represent that such records are to be used for law enforcement purposes." Routine dissemination to the FBI, which then acts as a "step-up transformer" to redisseminate the records widely to both law enforcement agencies and public and private employers, cannot be reconciled with this clear mandate.

Moreover, even if one looks to the Duncan Ordinance's scant "legislative history" in an effort to determine whether the transmission of unexpurgated arrest records to the FBI was to continue unabated, there is no indication that this practice was to be exempted from the apparently comprehensive scope of the Ordinance. To be sure, the Committee which drafted the Duncan Ordinance was acutely concerned with the abuse of those records for employment purposes. However, it is also clear that the District Court is incorrect in stating that the Committee's efforts were directed solely at preventing such abuse by local private employers. Section 5 of the Ordinance, in specifying that "no fee shall be required with respect to any record solicited by any agent of the Federal or District of Columbia Government for a governmental purpose," indicates that such agents are subject to the other limitations of Section 5, including the necessity of obtaining approval from the individual to whom the records relate and the restriction of dissemination to those records where the arrest culminated in a conviction or forfeiture of collateral. Indeed, the language of the "Duncan Report" which accompanied the recommendations which eventually became the Ordinance was even more explicit that the Committee was concerned with governmental as well as private use of these records, and abuse in both employment and licensing areas. Furthermore, the Committee was cognizant of considerable testimony concerning the government's improper use of arrest records for employment and licensing purposes. And although the most critical files of the Duncan Committee have apparently been misplaced by the Corporation Counsel, those which are still extant reveal a concern for governmental as well as private abuse of arrest data.

Appellees do not contend that the Duncan Ordinance would permit direct, routine and unconsented transmission of arrest records — even those arrest records which result in convictions — to federal or state and local government agencies for employment and licensing purposes. Yet they suggest that the Ordinance was intended to permit such transmission knowingly though indirectly through the FBI. In light of the substantial constitutional questions which we would be forced to decide if the Ordinance were to be construed in this matter, we would require more evidence than is currently available to attribute that intent to the draftsmen of the Ordinance or to the members of the District's Board of Commissioners.

The District of Columbia sought to protect its own citizens through passage of the Duncan Ordinance. In light of the considerable obstacles which an arrest record poses to an individual's pursuit of happiness and enjoyment of freedom and liberty, and the particularly heavy toll which such records have had on minorities in this country and in this city, such action was eminently reasonable. Of course, should the current City Council decide that "extremely important and practical questions" or any new policy considerations suggest that the literal language of the Duncan Ordinance was not or should no longer be intended to prevent the routine dissemination of arrest records to the FBI, it is free to act accordingly. Indeed, since recently promulgated Justice Department regulations concerning the dissemination of criminal history records mandate that compliance plans be submitted within 180 days after the effective date of the regulations, the City Council will have the occasion to reevaluate the proper scope of dissemination and the proper weight to be accorded individual privacy and other constitutional interests in this jurisdiction. At least until such changes are effectuated, however, we are constrained to enforce the language of the Duncan Ordinance as we believe it was intended to be enforced.

Reversed and remanded with directions to grant summary judgment for plaintiffs-appellants Utz, Boyd, and Bolling, and to enter appropriate relief.

* * * * * *

(b) 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, 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 * * *.