JAY C. ZAINEY, UNITED STATES DISTRICT JUDGE.
Before the Court is a
Jobe's complaint seeks relief under the Freedom of Information Act, 5 U.S.C. § 552 ("the FOIA") and the Administrative Procedure Act 5 U.S.C. § 706(1) ("the APA") and asks this Court to order the NTSB to disclose the records it withheld that relate to the fact-finding phase of its investigation of an EC130 B4 helicopter's ("the Helicopter") crash on the Island of Molokai, Hawaii, on November 10, 2011. (Rec. Doc. 48-1, p. 6, Jobe's Memorandum in Support). The crash killed the pilot, Nathan Cline, and his four passengers. Id. Plaintiff Jobe is an attorney who represents at least one of the families of the victims to the helicopter crash. Id.
The Helicopter was manufactured by Airbus Helicopters, SAS, a French manufacturing company. Id. Airbus Helicopters then sold the Helicopter to Nevada Helicopter
During its investigation, the NTSB authorized representatives from Airbus, Blue Hawaiian, and Turbomecca (the French engine manufacturer) to participate as "parties" to its investigation. Id. at 7. As parties to the investigation, the NTSB allowed Airbus, Blue Hawaiian, and Turbomecca to inspect the crash site, take field notes, discuss possible accident scenarios with other team members, and perform other investigative activities. (Rec. Doc. 28-1, p. 5-6, The NTSB's Memorandum in Support). Further, pursuant to Annex 13,
After the NTSB completed its investigation, Jobe submitted a request for information under 49 C.F.R. Part 837 seeking 24 different types of documents. (Rec. Doc. 28-5, p. 17, Jobe's 837 Release Request). After reviewing this request, the NTSB informed Jobe that his request lacked an affidavit that needed to contain: the information sought, its relevance to the proceeding, and a certification stating that the material was not available from another source. (Rec. Doc. 28-1, p. 6, The NTSB's Memorandum in Support). However, despite these deficiencies, the NTSB decided to convert Jobe's Part 837 request into a FOIA request. Id. This decision was made in part by the fact that the NTSB had coincidently received a separate FOIA request from a different entity a few days before Jobe's Part 837 request. Id. This separate request asked for "any and all records" relating to the Crash. Id. Thus, the NTSB applied the same "any and all records" scope to both the unnamed entity's request and to Jobe's request. Id. To complete these two requests, the NTSB searched through over 13,000 pages but chose to disclose only around 4,000 of these pages to Jobe.
In an attempt to receive more of the documents that were withheld from him, Jobe thereafter submitted a second FOIA request in 2016 that specifically asked for eleven different categories of documents that only related to the NTSB's "on-scene" phase of its investigation. Id. at 8. These eleven categories were as follows:
While the scope of Jobe's first request was all encompassing and asked for "any and all records" that related to the accident, Jobe's second request only sought documents that related to the "on-scene" phase of the NTSB's investigation. (Rec. Doc. 28-3, p. 16-17, April 26, 2017 Correspondence with Jobe). Accordingly, the NTSB answered his second request by informing him that it had previously disclosed to him all the releasable documents through his first request.
Jobe was again displeased with the NTSB's response to his request, so the NTSB, in an attempt to prevent litigation, offered to re-review the 2,349 records that it previously withheld from him under Exemption 5 in his first request. (Rec. Doc. 53-1, p. 3, the NTSB's Reply). However, the NTSB also informed Jobe that it would only produce the records that were responsive to the eleven categories that Jobe listed in his second FOIA request (i.e., only the records that related to the NTSB's on-scene investigations). (Rec. Doc. 28-5, p. 38, January 31, 2018 Correspondence with Jobe) ("In several telephone calls, you and I clarified the scope of your request, and as a result, we broadened the scope of your request to include any records related to the on-scene phase of the investigation."). Ultimately, out of the 2,349 records that the NTSB re-reviewed, it ultimately only released 159 of these documents to Jobe. (Rec. Doc. 28-5, p. 8-13, Mathew McKenzie's Declaration). The NTSB claimed that the remaining documents were either properly exempt from disclosure under Exemption 5 or were non-responsive to the 11 categories Jobe listed in his second FOIA request. Id.
After the NTSB completed its re-reviewal process, Jobe subsequently filed this suit and specifically requested the following categories of documents:
Thus, through his complaint, Jobe again restricted the scope to only the documents relating from the "on-scene" phase of the NTSB's investigation. This is in stark contrast to the breadth of documents he originally asked for in his first FOIA request (i.e., "any and all records" related to the crash) and the documents he seemingly requested in his Memorandum in Support of Summary Judgment. (Rec. Doc. 56, p. 8, Jobe's Response) ("Given the NTSB's December 29, 2017 agreement relative to [Jobe's second FOIA request], Plaintiff seeks the NTSB's release of all of the 2,349 pages of records arising out of [the Crash] and withheld by the NTSB on a claim of FOIA Exemption 5."). Accordingly, based on the limited scope of this case, the NTSB filed a Vaughn index which only listed the 215 documents that were withheld and were responsive to the 11 categories listed in Jobe's 2016 FOIA request. (Rec. Doc. 28, p. 1-4, Index of Withheld Records).
In this motion for summary judgment, Jobe requests three specific things. First, Jobe seeks the NTSB to release all 2,349 records relating to the Crash that it withheld under Exemption 5, instead of just the 215 items it found responsive to Jobe's 2016 FOIA request. (Rec. Doc. 56-1, p. 8, Jobe's Response). Second, if the Court finds that the Vaughn index should be limited to only 215 documents, Jobe requests that the NTSB conduct a segregability analysis and release all 215 documents with proper redactions. Id. at 10. Third, Jobe seeks the NTSB to provide a more detailed Vaughn index that sufficiently describes the applicability of Exemption 5 to each withheld record. Id. at 11.
Conversely, the NTSB asks this Court to dismiss this case by granting summary judgment in its favor.
The following will discuss the merits of both side's positions.
The FOIA requires a federal agency, upon request, to disclose records in its possession, unless the requested documents are clearly exempt from disclosure by statute. 5 U.S.C. § 552(a)-(b); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). The exemptions are exclusive and should be narrowly construed. Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976); Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). Furthermore, there is a strong presumption in favor of disclosure. U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) (citing Rose, 425 U.S. at 361, 96 S.Ct. 1592). Accordingly, the government bears the burden of proving that the documents withheld fall within an enumerated exemption. U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 141 n. 2, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989);
Although Jobe demands a Vaughn index of the 2,349 records that the NTSB withheld under Exemption 5, the NTSB submitted an index of only the 215 documents it deemed responsive to Jobe's 2016 FOIA request. (Rec. Doc. 28-6). The Court finds this limitation of scope to be appropriate. As the Magistrate Judge noted when ruling on Jobe's Motion to Compel the Vaughn index, "[a]t issue in the instant dispute is Jobe's November 1, 2016 request pursuant to the FOIA to the National Transportation Safety Board ("NTSB" or "defendant") for specific documents related to the crash investigation conducted by the agency." (Rec. Doc. 25, p. 1, Magistrate's Decision on Jobe's Motion to Compel). Accordingly, this case focuses on Jobe's second FOIA request which was limited in scope to only "on-scene" phase of the NTSB's investigation. Conversely, this suit does not concern Jobe's 2014 FOIA request which effectively asked for "any and all records" related to the Crash. Thus, the Court declines to expand the scope of the Vaughn index to include the 2,349 originally withheld documents.
Next, the FOIA requires federal agencies to disclose records upon request unless the records fall within one or more enumerated exemptions. Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 7, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001); see 5 U.S.C. § 552. The exemptions are narrowly construed so as not to "`obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.'" Klamath, 532 U.S. at 8, 121 S.Ct. 1060 (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). The relevant exemption here is Exemption 5, which allows an agency to withhold disclosure if the document meets two requirements: (1) it is an "inter-agency or intra-agency memorandum" that (2) "would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). Thus, if a document is not an "agency document," an agency may not withhold it even if it reflects the agency's deliberative process. Similarly, an agency must disclose documents that would otherwise be protected under Exemption 5 if that agency waives that right by voluntarily sharing the document with third parties. Mead Data Central, Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 253 (D.C. Cir. 1977).
First, to receive protection under Exemption 5, the record in question must be an inter-agency or intra-agency document. This type of protection is normally used to cover typical communications between agency employees. However, the
The second requirement for receiving protection under Exemption 5 is that the document must not be normally "discoverable by a private party in the course of civil litigation with the agency." Jordan v. Department of Justice, 591 F.2d 753, 772 (D.C. Cir. 1978). Among the privileges that fall within this classification is the deliberative process privilege. Id. This privilege shields from disclosure "all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be." Arthur Andersen & Co. v. I.R.S., 679 F.2d 254, 257 (D.C. Cir. 1982) (citation and internal quotation marks omitted). To determine whether a document is covered by this privilege, courts must look at two factors. First, courts ask whether the document is "predecisional," that is, whether the document was prepared in order to assist the decision-maker in making a decision. Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). These types of documents include things like proposals, draft documents, and other subjective documents that reflect the writer's opinions rather than an agency policy. Id. "To ascertain whether the documents at issue are pre-decisional, the court must first be able to pinpoint an agency decision or policy to which these documents contributed." Morley v. CIA, 508 F.3d 1108, 1127 (D.C. Cir. 2007) (quoting Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1983)).
The second factor of the deliberative process privilege requires the court to determine if the document is "deliberative." That is, a court must decide whether the document "reflects the give-and-take of the consultative process." Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006) (quoting Coastal States, 617 F.2d at 866). Further, the document must be such that its public disclosure would not "expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Dudman Commc'ns Corp. v. Dep't of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987). The burden is on the agency to "establish[] what deliberative process is involved, and the role played by the documents in issue in the course of that process." Coastal States, 617 F.2d at 868. Conclusory assertions that merely parrot the language of the exemption do not suffice. Senate of the Commonwealth of Puerto Rico on Behalf of Judiciary Comm. v. U.S. Dep't of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (citing Mead Data Cent., Inc. v. Dep't of the Air Force, 566 F.2d 242,
In this case, the Helicopter's manufacturers, Eurocopter and Turbomeca, prepared Documents 175-179 and Documents 180-206, but the NTSB claimed that Exemption 5 applied to these documents by saying, "[t]he advice provided to the NTSB by [Eurocopter and Turbomeca] are intra-agency communications covered by the consultant corollary to Exemption 5." (Rec. Doc. 28-1, p. 23, NTSB's Memorandum in Support). More specifically, "[t]he NTSB sought the outside advice, the advice was not adverse to government interests, and in providing their expertise, the consultants effectively functioned as agency employees." Id. Further, the NTSB attempted to refute the notion that Eurocopter and Turbomeca were not "disinterested" parties by saying, "[f]irst, NTSB investigations are fact-finding proceedings that do not assign liability or adjudicate rights, with no adverse parties." Id. at 24. "Second, legal professionals, claimant or insurer representatives, and to the extent practicable, individuals directly involved in an accident are not permitted to be party representatives." Id. "Third, party participation is subject to the [Investigator in Charge's] control and direction, and to the terms of the `Statement of Party Representative to NTSB Investigation' to ensure that parties are serving the needs of the NTSB investigation, and not any litigation purpose." Id.
Here, the Court finds the NTSB's arguments unpersuasive. As participants in the NTSB's investigation, Eurocopter and Turbomeca demonstrate the epitome of "self-interested" individuals. Although these entities were there to help the NTSB's investigation, they also were undoubtedly there to collect information to prepare for inevitable future litigation. Further, the NTSB relies on Electronic Privacy Information Center (EPIC) v. DHS, 892 F.Supp.2d 28, 45-46 (D.D.C. 2012) which appears to misread Klamath as requiring actual adversity between the consultant and the agency before the communications lose protection. However, Klamath does not require adversity, and the Court finds EPIC's reasoning unpersuasive. Klamath, 532 U.S. at 12, 121 S.Ct. 1060 ("The Tribes, on the contrary, necessarily communicate with the Bureau with their own, albeit entirely legitimate interests in mind. While this fact alone distinguishes tribal communications from the consultants' examples ... the distinction is even sharper, in that the Tribes are self-advocates at the expense of others seeking benefits inadequate to satisfy everyone.") (emphasis added).
Instead, Klamath requires the agency's consultant to be disinterested and not "represent[ing] an interest of its own, or the interest of any other client, when it advises the agency that hires it." Klamath, 532 U.S. at 12, n.4, 121 S.Ct. 1060. An agency's consultant has an obligation to be obedient "to truth and its sense of what good judgment calls for, and in those respects the consultant functions just as an employee would be expected to do." Id. Thus, as the United Supreme Court has noted, "the intra-agency condition excludes, at the least, communications to or from an interested party seeking a Government benefit at the expense of other applicants." Id.
Both Eurocopter and Turbomeca received a significant benefit here. As Jobe
Under the same reasoning, the NTSB must also disclose the email sent by the fact witness pilot to the NTSB. Id. This email was not prepared by the agency nor did the NTSB hire this fact witness to serve as an agency consultant. Therefore, the Court also finds that the NTSB must release Documents 165-166 from the fact witness pilot to Jobe.
Next, after conducting an in camera inspection of Documents 62-87, 88-92, 93, 94-104, 105-119, 120-122, 167-174, and 207-215, the Court confirmed that these documents were all internally produced by NTSB personnel and were only shared with NTSB staff. Accordingly, these documents satisfy the Deliberative Process Privilege's two criteria. Coastal States Gas Corp., 617 F.2d at 866. First, these documents are "predecisional" because they were drafted before the NTSB made its final conclusions on the crash. (Rec. Doc. 28-6, The NTSB's Index of Withheld Records). Second, these documents are "deliberative" because the disclosure of these documents would unjustly expose the NTSB's decision-making process. Id. Thus, the Court finds that the NTSB properly withheld these documents from disclosure under Exemption 5.
Lastly, Documents 1-61, 123-124, and 125-156 were prepared by NTSB personnel but then were distributed to other NTSB personnel and outside representatives, such as the plane's manufacturers and the plane's leasing company. (Rec. Doc. 28-6, The NTSB's Index of Withheld Records). Normally, these documents would be exempt for disclosure because they were both "predecisional" and "deliberative." Coastal States Gas Corp., 617 F.2d at 866. However, for the purposes of the inter-agency requirement under Exemption 5, the Supreme Court has noted that the term "agency" means "each authority of the Government of the United States, § 551(1), and includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government ... or any independent regulatory agency[.]" Klamath Water Users, 532 U.S. at 9, 121 S.Ct. 1060 (internal quotations omitted). In general, this definition establishes that communications between agencies and out-side parties are not protected under the deliberative process privilege. Ctr. for Int'l Envtl. Law v. Office of U.S. Trade Representative, 237 F.Supp.2d 17, 25 (D.D.C. 2002). As seen through the analysis above, entities like the plane's manufacturers and the plane's leasing company are considered outside parties because they do not constitute "disinterested" consultants under the
The FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after [the] deletion of the portions which are exempt." 5 U.S.C. § 552(b). Therefore, once an agency identifies a document that it believes qualifies for a FOIA exemption, "it must undertake a segregability analysis, in which it separates the exempt from the non-exempt portions of the document, and produce[] the relevant non-exempt information." Edmonds Inst. v. U.S. Dep't of the Interior, 383 F.Supp.2d 105, 108 (D.D.C. 2005) (citing Vaughn, 484 F.2d at 825). To prevail in a motion for summary judgment, the agency must demonstrate that it has satisfied its segregability analysis obligation, which it may do through its Vaughn index in conjunction with an agency declaration. See e.g., Peter S. Herrick's Customs & Int'l Trade Newsletter v. U.S. Customs & Border Protection, No. 04-377, 2005 WL 3274073, at *3 (D.D.C. Sept. 22, 2005). Under Fifth Circuit law, "[i]t is error for a district court to simply approve the withholding of an entire document without entering a finding on segregability, or the lack thereof." Batton v. Evers, 598 F.3d 169, 178 (5th Cir. 2010) (citing Schiller v. NLRB, 964 F.2d 1205, 1210 (D.C. Cir. 1992)).
Here, the Court finds that the Vaughn index submitted by the NTSB, combined with the NTSB's declaration that no further segregation is possible (Rec. Doc. 28-3, p. 6, Declaration by Melba Moye), demonstrates that withheld Documents 62-122, 157-164, and 207-215 are not segregable. See Peter S. Herrick's Customs & Int'l Trade Newsletter v. U.S. Customs & Border Prot., No. CIV.A. 04-00377 JDB, 2005 WL 3274073, at *3 (D.D.C. Sept. 22, 2005) ("[T]he combination of a comprehensive, reasonably-detailed Vaughn index and an affidavit confirming that a line-by-line review of each document determined that no redacted information could be disclosed will satisfy the agency's obligation."). Further, this determination was bolstered by the Court's in camera review of the corresponding documents. Thus, Jobe's claim relating to segregability of the withheld documents has no merit.
Jobe lastly requested this Court to order "the NTSB to provide a full and complete Vaughn index, sufficient for this Court to determine the applicability of Exemption 5 to each of the records withheld." However, the Court now finds this argument moot after it completed an in camera inspection of all 215 documents on the Vaughn index. (Rec. Doc. 28-6).
Accordingly;
