U.S. Court of Appeals Holds that National Transportation Safety Board's Communications with interested Outside Parties are "Intra-Agency" and not Releasable under the Freedom of Information Act

An article by Michael L. Dworkin recently published in the Exclusive Aviation Bulletin

AeroPodium Expert -Issue 17 - November 2021 - Link to original publication

In 2011, a helicopter crashed while on a sightseeing tour in Hawaii, killing the pilot and all four passengers. The helicopter was operated by a US company. The helicopter and its engine were manufactured by French companies.

The accident was investigated by the National Transportation Safety Board (“NTSB”), an independent US Government agency charged with the investigation of civil aviation and other transportation accidents. The agency conducts fact finding proceedings to determine probable cause and issue safety recommendations. Since its creation in 1967, the NTSB has investigated thousands of accidents and the NTSB process is regarded worldwide to be nothing less than the “gold standard” in accident investigation.

NTSB investigations are headed by an Investigator in Charge (“IIC”) who may designate “parties” to the investigation to provide suitable qualified technical personnel to assist in that investigation.

[FOOTNOTE: The NTSB is one of the smallest US federal agencies, having less than 500 employees. While it has tremendous in-house expertise, by necessity, it must frequently rely upon the specialized technical knowledge and expertise of aircraft operators and manufacturers, utilizing the “party system”. Nonagency parties must sign a “Statement of Party Representatives to NTSB Investigation” which commits them not to prepare for litigation or pursue other self-interests while serving as a party to the investigation. Parties may not be represented by any person who also represents claims or insurers nor may they release information obtained during an investigation, subject to specific exceptions]

Here, and in full accordance with NTSB accident investigation regulations (49 CFR Part 831) and established NTSB practices, protocols and procedures, representatives of the operator, the two French manufacturers and a French government agency, BEA, joined the investigation as parties. As parties to the investigation, they were allowed to inspect the crash site, take notes, discuss accident scenarios with other investigating team members and perform other investigative activities. They had access to physical evidence. They gained timely and direct access to information. They were permitted to submit to the NTSB proposed findings, probable cause determinations and safety recommendations.

NTSB investigations are fact finding and do not determine the rights or liabilities of any person (49 CFR Sec. 831.4). Moreover, the NTSB’s probable cause determinations allocating fault cannot be admitted into evidence or used in a civil action for damages (49 USC Sec. 1154(b); 49 CFR 835.2). However, the factual accident report which contains the results of the investigation—i.e., the facts of the accident, is admissible and can be used (and oftentimes is used). Moreover, the NTSB’s safety recommendations are reported to the FAA which may adopt and implement them, thereby affecting FAA-regulated entities (49 USC Sec. 1135).

In 2014, an attorney representing the family of one of the crash victims, submitted an information request to the NTSB for documents relating to the crash. In response, the NTSB produced about 4,000 pages of documents but withheld many, claiming that they were privileged intra-agency communications, exempt from disclosure under the Freedom of Information Act (“FOIA”).

[FOOTNOTE: FOIA requires US federal agencies, upon request, to disclose records in their possession, unless the records are clearly exempt from disclosure by statute (5 U.S.C. Sec. 552(a)-(b). Exemption 5 allows agencies to withhold from disclosure inter-agency or intra-agency memoranda that would not be available by law to a party other than an agency in litigation with the agency, ostensibly to protect the agency’s deliberative process. Exemption 5 also protects communications with non-agency experts whose input the agency has solicited—i.e., the “consultant corollary”.]

The withheld documents contained communications between the NTSB and the operator, the French manufacturers and the BEA. The attorney initiated a FOIA suit in US District Court for the Eastern District of Louisiana to compel disclosure of documents and communications from the on-scene phase of the crash investigation.

The US District Court ordered the NTSB to release many of the requested documents (Jobe v. NTSB, No. 18-10547 [E.D. La. November 18, 2019]), finding that the manufacturer participants to the investigation “demonstrate the epitome of ‘self-interested’ individuals”. Although they were there “to help the NTSB’s investigation, they were also undoubtedly there to collect information to prepare for inevitable future litigation.” The Court noted that throughout the entire investigative process, the manufacturers and the operator were welcome to the government investigation file and were given editorial license to the NTSB’s draft factual and probable cause reports (whereas the accident victims’ families were not). Their participation in the investigation conferred a significant benefit to these companies.

The NTSB appealed and the U. S. Court of Appeals for the Fifth Circuit recently reversed the District Court (No. 20-30033, June 17, 2021), finding that “self-interest” did not “prevent outside experts from being deemed consultants”; they were “technical personnel who participated in an agency fact-finding investigation—a process that was designed solely to issue safety recommendations, that does not adjudicate liability, and that was controlled by the agency itself”; and that the District Court erred in concluding that the documents were not “intra-agency” under Exemption 5. The Court’s opinion was not unanimous. In a strongly worded dissent, it was noted:

“If the terms “inter-agency” and “intra-agency” exclude anything, I would think they exclude government communications with employees of the very entity the government is trying to regulate… A communication between the regulator and the regulated—between parties with conflicting public versus private interests—is the very opposite of an internal government communication.”

and observed that the manufacturers were:

“…private companies with a clear interest in the NTSB conducting its investigation in a manner favorable to their private corporate interests. They have an interest, for example, in steering the NTSB away from making any statements or reaching any conclusions that might support litigants who are either currently adverse to the companies or may someday be in the future….”

Addressing the controls that the NTSB places on its designated parties to ensure that they serve in the public, rather than private interest:

“Those regulations and restrictions are necessary precisely because these employees remain on the payroll of the regulated companies and expect to return to their employers when their secondments are completed. So they obviously have an interest in the agency’s work. It would be pure fiction for a government agency like the NTSB to expect these designated private employees to ignore their sense of loyalty and duty to their employers.”

It appears that this matter may ultimately be reviewed by the US Supreme Court. A Petition for Certiorari is being filed as of the date of this article. If the Supreme Court elects to hear this case, there will likely be ramifications affecting the NTSB’s party system.

About the author: Michael L. Dworkin is admitted to the District of Columbia and California Bars and has been practicing law for 47 years. He is also admitted to practice before numerous federal courts, including the Supreme Court of the United States and the United States Claims Court and is a certificated mediator.

Mr. Dworkin is the founder and Managing Partner of Avialex Law Group, LLP, a San Francisco, California law firm specializing in aviation matters providing clients with a wide range of legal services on a nationwide and worldwide basis. He has been in private practice since 1981, when he established Michael L. Dworkin and Associates, which in 2018 became Avialex Law Group, LLP in 2018. Areas of practice include:

-Federal Aviation Administration (FAA)/Department of Transportation (DOT) regulatory, certification and enforcement;

-National Transportation Safety Board (NTSB) appeals;

-Accident/incident investigation;

-Safety audits;

-Airport use and access;

-Insurance;

-Aircraft and equipment sale, purchase, lease and disposition;

-Contracts;

-Development of Safety Management Systems (SMS) and Emergency Response Plans (ERP); and

-Litigation in State and Federal Courts and before Federal regulatory agencies.

Mr. Dworkin and his firm hold the Martindale-Hubbell “AV” rating-- the highest attainable based upon independent evaluations by other attorneys in the local community, throughout the nation and in the aviation legal community. Mr. Dworkin is listed in Martindale-Hubbell’s Register of Preeminent Lawyers. The firm was also named by the International Air Transport Association as one of the world’s 100-best aviation law firms and Mr. Dworkin has been named by American Law Media as one of San Francisco’s top lawyers. Prior to entering private practice, Mr. Dworkin was staff counsel to the Federal Aviation Administration in Washington, D.C. and Los Angeles and United Airlines in San Francisco.

He received his Bachelor of Arts (B.A.) with Honors in Government from Clark University, Worcester, Massachusetts, and his Juris Doctor (J.D.) with Honors from The George Washington University’s National Law Center in Washington, D.C.

From February 2000 through May 2002, Mr. Dworkin served as President of the Washington, D.C.-based National Transportation Safety Board Bar Association (now the International Air and Transportation Safety Bar Association [www.iatsba.org]). From February 2008 through February 2014, he served as Executive Vice President. He currently serves on its Board of Directors.

Mr. Dworkin is also a member of the American Bar Association, Bar Association of San Francisco, Lawyer Pilots Bar Association, Aircraft Owners and Pilots Association, National Business Aviation Association, Commonwealth Club of California, International Aviation Club and Wings Club. Since 2015 he has served on the Board of Directors of the Northern California Business Aviation Association [www.norcalbaa.org] and in 2017 and 2018 served as its President.

Mr. Dworkin also serves as an Adjunct Professor of Aviation Law at San Jose State University.

Mr. Dworkin has authored numerous articles and given presentations to aviation legal and industry groups throughout the United States and in Canada, Argentina, South Korea, Taiwan and the United Kingdom. Groups have included the International Air & Transportation Safety Bar Association, American Bar Association Forum of Air and Space Law, International Society of Air Safety Investigators, Lawyer Pilots Bar Association, National Business Aircraft Association, Aircraft Owners and Pilots Association, Northern California Business Aviation Association, San Francisco Sheriff’s Aero Squadron, San Mateo County Sheriff’s Aero Squadron, Aero Club of Northern California and Aeropodium.