Brockway v. Department of Air Force

• Decision Date: 06 June 1975
• Docket Number: No. 74-1268,74-1268
• Citation: 518 F.2d 1184
• Parties: David L. BROCKWAY, Sr., Appellee, v. DEPARTMENT OF the AIR FORCE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1184

518 F.2d 1184

David L. BROCKWAY, Sr., Appellee, v. DEPARTMENT OF the AIR FORCE, Appellant.

No. 74-1268.

United States Court of Appeals,

Eighth Circuit.

Submitted April 14, 1975.

Decided June 6, 1975.

Thomas G. Wilson, Atty., Dept. of Justice, Civ. Div., Appellate Section, Washington, D. C., for appellant.

Richard P. Moore, Cedar Rapids, Iowa, for appellee.

Before MATTHES, Senior Circuit Judge, and ROSS and WEBSTER, Circuit Judges.

MATTHES, Senior Circuit Judge.

On this appeal by the Department of the Air Force we are required to review a district court order requiring the Air Force to make public all of a safety report on an airplane crash. The district court order and memorandum opinion, published at 370 F.Supp. 738 (N.D.Iowa 1974), were premised upon the Freedom of Information Act (FOIA), 5 U.S.C. § 552.

On February 24, 1972, Second Lieutenant David L. Brockway, Jr., of the United States Air Force was killed when his aircraft crashed during a training flight near England Air Force Base, in Louisiana. This appeal concerns the efforts by David L. Brockway, Sr., the lieutenant's father and the plaintiff-appellee in this action (hereinafter plaintiff), to utilize the Freedom of Information Act to gain access to statements by certain witnesses, all members of the Air Force, about the circumstances surrounding the crash. The statements are not sought for purposes of any pending or anticipated litigation. Rather, plaintiff seeks the statements solely for his personal enlightenment as to the cause of the crash in which his son was killed.

A short explanation of the nature of the information sought by the plaintiff in this action, and the manner in which that information was obtained by the Air Force, is necessary for an understanding of this appeal.

Shortly after the crash, the Air Force instituted certain investigative procedures established by Air Force regulations. In accordance with these regulations, two separate and independent investigations of the crash were undertaken. The one, called a collateral investigation, was made "to obtain and preserve all available evidence for use in claims, litigation, disciplinary action, and adverse administrative proceedings, and for all other purposes except for safety and accident prevention purposes." The other, characterized as an aircraft accident investigation (also called a safety investigation), was instituted "for the sole purpose of accident prevention." A.F.Reg. 110-14, P 1.

There is a specific rationale for this dual investigation procedure. The Air Force believes that a witness may be reluctant to testify freely before the collateral investigation board for fear that his statement will reveal some negligence or misconduct on his part, thereby exposing himself to disciplinary action or other adverse consequences. To enable the Air Force to obtain from a witness all relevant information necessary to prevent further accidents of a similar nature, the Air Force has established the safety investigation procedure as a proceeding wholly separate from the collateral investigation. The witness is requested to speak freely to the safety investigation board more freely than he might speak to the collateral board on the assurance that the information he imparts to the safety board will be kept confidential and will not be revealed to the collateral board or used for any purpose other than accident prevention. The Air Force asserts that the assurances of confidentiality do in fact encourage Air Force personnel to testify before the safety investigation board and that the safety investigation board procedure has contributed to the reduction in the frequency of accidents involving Air Force equipment.

Upon his request for the Air Force investigative files on the crash which resulted in his son's death, plaintiff was supplied part of the collateral report, although the Air Force withheld the opinions, conclusions, and recommendations of that report and medical reports on an instructor pilot also killed in the crash. After plaintiff brought this suit pursuant to the FOIA, the Air Force supplied him with the remainder of the collateral investigation report.

Upon learning of the existence of the safety investigation report, however, the plaintiff insisted that the safety report also be revealed. The Air Force granted plaintiff access to part of the safety report, but declined to disclose the remainder, which included a report by Cessna Aircraft Company in connection with the crash, the statements of various witnesses to the safety investigation board upon assurances of confidentiality, and material containing the opinions, recommendations, and conclusions of the safety board. In regard to the witness statements, the Air Force did furnish the plaintiff with the names and addresses of the witnesses whose statements were withheld and offered to allow each witness to review his own statement if he personally wished to reveal his testimony to the plaintiff. Pursuant to the FOIA, the plaintiff in this action sought to enjoin the withholding of the Cessna Aircraft report and the witness statements contained in the safety report files. Thus the district court was presented with the question whether the FOIA required the disclosure of the Cessna report and the statements of the witnesses.

The Freedom of Information Act, enacted in 1966 as an amendment to the Administrative Procedure Act of 1946, manifested Congress's belief that administrative agencies were improperly withholding from the public considerable information that should have been made available. ¹ See H.Rep.No.1497, 89th Cong., 2d Sess. 5 (1966), U.S.Code Cong. & Admin.News 1966, p. 2418 (hereinafter H.Rep.). Through the FOIA Congress sought to remedy this state of affairs. "It is the purpose of the (FOIA) . . . to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language and to provide a court procedure by which citizens and the press may obtain information wrongfully withheld." S.Rep.No.813, 89th Cong., 1st Sess. 3 (1965) (hereinafter S.Rep.). See generally K. Davis, Administrative Law Treatise § 3A.4 (1970 Supp.); Note, The Freedom of Information Act: A Seven-Year Assessment, 74 Columbia L.Rev. 895-99 (1974). Specifically, subsection (c) of the Act, codified as 5 U.S.C. § 552(a) (3), provides in pertinent part that a government agency is required to make its records "promptly available to any person." There is no requirement in the Act that the person requesting the information or records show any need to obtain them. The same subsection as codified provides that a federal district court "has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld . . . ." Subsection (e) of the Act, codified as 5 U.S.C. § 552(b), lists nine exemptions to the broad requirement of subsection (c) that agency records and information be made public upon request. The fourth and fifth of these nine exemptions are the focus of this appeal, and are accordingly quoted in full here as codified at 5 U.S.C. § 552(b):

(b) This section does not apply to matters that are

(4) trade secrets and commercial or financial information obtained from a person and privileged and confidential;

(5) 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 Air Force asserted to the district court that under Exemption 4 the Cessna report was exempt from disclosure as confidential commercial information. The district court accepted this argument, 370 F.Supp. at 740-41, and the plaintiff has not appealed this ruling. The Air Force also contended that the witness statements were exempt under Exemption 4, arguing that the exemption included nonfinancial confidential statements such as those given to the safety investigation board. The Air Force alternatively urged that the statements were intra-agency memoranda, immune from discovery in litigation by a qualified privilege, and therefore exempt under the fifth exemption of the Act.

The district court rejected both arguments of the Air Force on the immunity of the witness statements from disclosure, and ordered production of all but three of the statements. ² The court ruled that the fourth exemption applies only to information obtained from persons outside the government and that the exemption did not exempt the witness statements in question from disclosure, since they were made by Air Force personnel.

Turning to the contention that the statements were exempt under the fifth exemption, the district court focused upon the provision of the exemption that disclosure would not be required as to information "which would not be available by law to a party . . . in litigation with the agency." The court reasoned from the discovery provisions of Fed.R.Civ.P. 26 that the witness statements could be discovered by a party in litigation with the agency.

At issue on this appeal is whether the witness statements fall within the scope of either the fourth exemption or the fifth exemption to the disclosure requirement of the FOIA. ³

I

As noted above, the fourth exemption excludes from the mandate of disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential." The district court ruled that this exemption applies only to information received by an agency from private individuals outside the government and that the witness statements in question here did not come within the scope of the exemption, since all the statements were by Air Force personnel. 370 F.Supp. at 741. There is authority supporting the court's holding, although the prior cases usually were phrased in the context of transferring general agency files from one governmental body to another, rather than in the context of an agency...