United States v. Weber Aircraft Corporation

• Decision Date: 20 March 1984
• Docket Number: No. 82-1616,82-1616
• Citation: 465 U.S. 792,104 S.Ct. 1488,79 L.Ed.2d 814
• Parties: UNITED STATES, Petitioner, v. WEBER AIRCRAFT CORPORATION et al
• Court: U.S. Supreme Court

465 U.S. 792

104 S.Ct. 1488

79 L.Ed.2d 814

UNITED STATES, Petitioner,

v WEBER AIRCRAFT CORPORATION et al.

No. 82-1616.

Argued Jan. 11, 1984.

Decided March 20, 1984.

Syllabus

When the engine of an Air Force aircraft failed in flight, the pilot was severely injured when he ejected from the plane. After Air Force collateral and safety investigations of the incident had been completed, the pilot filed a damages action against respondents as the entities responsible for the design and manufacture of the plane's ejection equipment. Respondents sought pretrial discovery of documents containing confidential unsworn statements made during the safety investigation by the pilot and the airman who had rigged and maintained the pilot's parachute equipment. But such discovery was prevented by Machin v. Zukert, 114 U.S.App.D.C. 335, 316 F.2d 336, cert. denied, 375 U.S. 896, 84 S.Ct. 172, 11 L.Ed.2d 124, which held that confidential statements made to air crash safety investigators are privileged with respect to pretrial discovery. Respondents then filed requests for the statements under the Freedom of Information Act (FOIA) and, when the Air Force refused production, commenced an action in Federal District Court, which held that the statements were protected from disclosure by Exemption 5 of the FOIA, which exempts from disclosure "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." The Court of Appeals reversed, holding that although the requested documents were "intra-agency memorandums" within the meaning of Exemption 5 and were protected from civil discovery under the Machin privilege, the statutory phrase "would not be available by law" did not encompass every civil discovery privilege but rather reached only those privileges explicitly recognized in the FOIA's legislative history, which the court read as not extending to the Machin privilege.

Held: The statements in question are protected from disclosure by Exemption 5. The Exemption's plain language, as construed by this Court's prior decisions, is sufficient to resolve the question presented. The statements are unquestionably "intra-agency memorandums or letters" within the meaning of the Exemption, and, since the Machin privilege normally protects them from civil discovery, they "would not be available by law to a party other than [the Air Force] in litigation with [the Air Force]." Exemption 5's scope is not limited to privileges explicitly identified by Congress in the FOIA's legislative history. To hold that material that is normally privileged can be obtained through the FOIA would create an anomaly in that the FOIA could be used to supplement civil discovery. And Exemption 5's legislative history does not contain the kind of compelling evidence of congressional intent that would necessitate looking beyond the plain statutory language, but rather indicates that Congress intended to incorporate governmental privileges analogous to the Machin privilege. Pp. 798-804.

688 F.2d 638 (9th Cir.1982), reversed.

Samuel A. Alito, Jr., Newark, N.J., for petitioner.

Jacques E. Soiret, Los Angeles, Cal., for respondents.

Justice STEVENS delivered the opinion of the Court.

The Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1982 ed.), requires federal agencies to disclose records ¹ that do not fall into one of nine exempt categories.² The question presented is whether confidential statements obtained during an Air Force investigation of an air crash are protected from disclosure by Exemption 5, which exempts "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."

I

On October 9, 1973, the engine of an Air Force F-106B aircraft failed in flight. Captain Richard Hoover, the pilot, was severely injured when he ejected from the plane. Under Air Force regulations, the incident was a significant air crash that required two separate investigations: a "collateral investigation" and a "safety investigation."

The collateral investigation is conducted "to preserve available evidence for use in claims, litigation, disciplinary actions, administrative proceedings, and all other purposes." ³ Witnesses in a collateral investigation testify under oath and generally are protected by the procedural safeguards that are applicable in other formal hearings. The record of the collateral investigation is public.

The "safety investigation" is quite different. It is conducted by a specially appointed tribunal which prepares a report that is intended for "the sole purpose of taking corrective action in the interest of accident prevention." ⁴ To encourage witnesses to speak fully and frankly, they are not sworn and receive an assurance that their statements will not be used for any purpose other than accident prevention.⁵ Air Force regulations contain a general prohibition against the release of safety investigation reports and their attachments,⁶ subject to an exception which allows the Judge Advocate General to release specified categories of "factual information" and "nonpersonal evidence." ⁷

After the collateral and safety investigations had been completed, Captain Hoover filed a damages action against various entities responsible for the design and manufacture of his plane's ejection equipment.⁸ During pretrial discovery in that litigation, two of the parties (respondents Weber ⁹ and Mills ¹⁰) sought discovery of all Air Force investigative reports pertaining to the accident. The Air Force released the entire record of the collateral investigation, as well as certain factual portions of the safety investigation, but it refused to release the confidential portions of the safety investigation.

Confidential statements made to air crash safety investigators were held to be privileged with respect to pretrial discovery over 20 years ago. Machin v. Zukert, 316 F.2d 336 (D.C.Cir.), cert. denied, 375 U.S. 896, 84 S.Ct. 172, 11 L.Ed.2d 124 (1963). That holding effectively prevented respondents from obtaining the pretrial discovery they sought—specifically the unsworn statements given by Captain Hoover and by the airman who had rigged and maintained his parachute equipment. Respondents therefore filed requests for those statements under the FOIA, and when the Air Force refused production, they commenced this action.

In the District Court the Government filed an affidavit executed by the General responsible for Air Force safety investigations, explaining that the material that had been withheld contained "conclusions, speculations, findings and recommendations made by the Aircraft Mishap Investigators" as well as "testimony presented by witnesses under a pledge of confidentiality." App. 38. The affidavit explained why the General believed that the national security would be adversely affected by the disclosure of such material.¹¹ The District Court held that the material at issue would not be available by law to a party other than an agency in litigation with an agency, and hence need not be disclosed by virtue of Exemption 5.¹² The Court of Appeals reversed, 688 F.2d 633. It agreed that the requested documents were "intra-agency memorandums" within the meaning of Exemption 5, and that they were protected from civil discovery under the Machin privilege. It held, however, that the statutory phrase "would not be available by law" did not encompass every civil discovery privilege but rather reached only those privileges explicitly recognized in the legislative history of FOIA. It read that history as accepting an executive privilege for pre-decisional documents containing advice, opinions or recommendations of government agents, but as not extending to the Machin civil discovery privilege for official government information. It accordingly remanded the case with directions to disclose the factual portions of the witnesses' statements.

II

The plain language of the statute itself, as construed by our prior decisions, is sufficient to resolve the question presented. The statements of the two witnesses are unquestionably "intra-agency memorandums or letters" ¹³ and, since the Machin privilege normally protects them from discovery in civil litigation, they "would not be available by law to a party other than [the Air Force] in litigation with [the Air Force]." ¹⁴

Last Term, in FTC v. Grolier, Inc., 462 U.S. ----, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983), we held that Exemption 5 simply incorporates civil discovery privileges: "The test under Exemption 5 is whether the documents would be 'routinely' or 'normally' disclosed upon a showing of relevance." Id., at ----, 103 S.Ct., at 2214.¹⁵ Thus, since the Machin privilege is well recognized in the case law as precluding routine disclosure of the statements, the statements are covered by Exemption 5.

Grolier was consistent with our prior cases. For example, Grolier itself relied on Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975), which Grolier quoted on the scope of Exemption 5: "Exemption 5 incorporates the privileges which the government enjoys under the relevant statutory and case law in the pretrial discovery context." 462 U.S., at ----, 103 S.Ct., at 2218 (emphasis in original) (quoting 421 U.S., at 184, 95 S.Ct., at 1500). Similarly, in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975), we wrote: "Exemption 5 withholds from a member of the public documents which a private party could not discover in litigation with the agency." Id., at 148, 95 S.Ct., at 1515.¹⁶ In FOMC v. Merrill, 443 U.S. 340, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979), we wrote: "The House Report [on the FOIA] states that Exemption 5 was intended to allow an agency to withhold intra-agency memoranda which would not be 'routinely disclosed to a private party through the discovery process in...