PHILADELPHIA – The National Transportation Safety Board (NTSB) has filed for summary judgment and argued it did not illegally withhold information from families and loved ones of crash victims in violation of the Freedom of Information Act.
The Wolk Law Firm (a.k.a. “Arthur Alan Wolk Associates”) of Philadelphia initially filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 2, 2019, versus the United States of America/NTSB of Washington, D.C.
The plaintiff firm said the NTSB is “routinely retained to investigate aircraft accident investigations, and to pursue legal remedies for its clients” and alleged the NTSB instead relies upon manufacturers of civil aircraft and aircraft components to provide technical expertise and help it complete crash investigations.
Furthermore, that this relationship has created a situation in which these same manufacturers received unfettered access to and editorial control over crash investigation materials and evidence – the very same access which has been denied to victims of aviation crashes, their loved ones and representative agents.
The suit said this constitutes a violation of the Freedom of Information Act.
However, the NTSB responded with a motion to dismiss in July 2019 through invoking sovereign immunity, arguing that the plaintiff firm failed to state a claim for violation of due process because the rights allegedly violated are statutory and not constitutional.
The firm replied in August 2019 that the NTSB’s alleged information withholding violated the Fifth, Seventh and Fourteenth amendments to the U.S. Constitution and said subject matter jurisdiction over these claims would be appropriate under the Administrative Procedures Act.
However, the NTSB counter-argued that FOIA provided an adequate remedy for the plaintiff, that the plaintiff firm failed to allege the NTSB acted arbitrarily or capriciously in refusing to provide materials not covered by FOIA, that an APA claim was premature because the NTSB has not taken action reviewable under it and that there was no private right to action for obstruction of justice.
“To seek relief under the APA, the plaintiff must assert a claim under it. In the first amended complaint, Wolk does not specifically invoke the APA. But, because it could do so in a second amended complaint, we address the issue now in the interest of judicial economy and efficiency,” U.S. District Court Judge Timothy J. Savage said.
In a separate lawsuit, U.S. District Court Judge Eduardo C. Robreno found earlier this year that Freedom of Information Act exemptions apply to the NTSB’s refusal to provide document and video evidence in a crash investigation involving Don and Ingrid Goldstein.
However, Robreno also found the NTSB provided “no justification to withhold information regarding the Goldstein aircraft wreckage, or the wreckage itself if the NTSB still has it,” thereby granting the NTSB’s motion for summary judgment as to the aforementioned documents and videos, but also ordering the NTSB to “produce chain-of-custody information about the wreckage or make the wreckage available for inspection.”
Savage later chose to stay the instant case and found on Oct. 10, 2019 that the NTSB in fact enjoyed sovereign immunity and shield from suit as a government organization. He then ruled that all proceedings were stayed, the clerk was to place the case in suspense, the NTSB was to file a status report regarding the plaintiff’s FOIA requests every 60 days and within 10 days of processing said requests, the NTSB will advise the court that it did so.
The stay was lifted this past May.
UPDATE
The NTSB filed a motion for summary judgment on Oct. 30, arguing it properly withheld or redacted documents in accordance with applicable FOIA exemptions, which protect:
• Trade secrets and commercial or financial information obtained from a person and privileged or confidential;
• Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
• Confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice;
• Personnel and medical files and similar files when the disclosure of such information would constitute a clearly unwarranted invasion of personal privacy.
“The NTSB properly invoked Exemption 4 to withhold information that, if released, would reveal confidential: (1) Aircraft component specifications – such as in drawings, work requests, inspection reports, manuals, and technical data; and (2) Financial information such as prices on work invoices,” the motion said.
“The NTSB redacted, or withheld in full, based on Exemption 5, a few documents that contained legal discussions between NTSB employees and an NTSB attorney. In particular, the protected discussions involved an NTSB attorney providing counsel on whether to release certain records in the public docket or in litigation. These communications fall squarely within the ambit of the attorney-client privilege and were properly withheld.”
The motion explained the NTSB withheld in full or redacted under Exemption 5 records that predate the NTSB’s publication of a final report for each accident and would give insight into the agency’s deliberative processes.
“The categories of such records include notes, calculations, accident summaries, draft reports, communications, analyses, and memoranda. The records reflect input on: Draft reports; Preliminary information and thoughts on the causes of the accidents; The potential relevance of certain information to the agency; How information may be used by the agency during the investigations; Investigation strategies and investigators’ thought processes,” the motion said.
“These records thus contain precisely the type of information the deliberative process privilege protects from disclosure. Release of this information could chill frank discussion between NTSB employees and party representatives about possible accident causes and create confusion by disclosing reasons and rationales that were not ultimately the bases for the NTSB’s final reports.”
The plaintiff is represented by Cynthia Marie Devers and Michael S. Miska of The Wolk Law Firm, in Philadelphia.
The defendant is represented by Stacey L.B. Smith of the U.S. Attorney’s Office, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-01401
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com