Lahr v. National Transp. Safety Bd.
| Decision Date | 31 August 2006 |
| Docket Number | No. CV 03-8023 AHM (RZx).,CV 03-8023 AHM (RZx). |
| Citation | 453 F.Supp.2d 1153 |
| Parties | H. Ray LAHR, Plaintiff, v. NATIONAL TRANSPORTATION SAFETY BOARD, Central Intelligence Agency and National Security Agency, Defendants. |
| Court | U.S. District Court — Central District of California |
John H. Clarke, John H. Clarke Law Offices, Washington, DC, John F. Dunne, Jr, John F. Dunne Jr. Law Offices, Los Angeles, CA, for Plaintiff.
David M. Glass, Elizabeth J. Shapiro, Department of Justice, Civil Division, Washington, DC, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT CIA'S SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT
"Certain historical facts are unassailable, while others are constantly subject to attack and, ultimately, remain shrouded in mystery and confusion." Minier v. Central Intelligence Agency, 88 F.3d 796, 799 (9th Cir.1996). This irrefutable observation aptly describes the controversy that triggered this lawsuit. Barely more than ten years ago, on July 17, 1996, a United States commercial aircraft—TWA Flight 800—exploded in mid-air off the coast of Long Island. Everyone aboard perished. What happened? How? Why? Who was responsible? Was it an accident? A terrorist attack?
Of course there was an official investigation. And of course there was an official explanation. And of course there was an ensuing torrent of critics and skeptics who challenged the bona fides of the investigation and rejected the explanation.
Equally predictable, the doubters (or at least Plaintiff, representing one group of them) have now turned to the courts to seek a ruling ordering the Government to turn over information that it has thus far withheld. For the reasons set forth below, I find that plaintiff is entitled to some, but not all, of what he seeks. The Court therefore GRANTS summary judgment to Defendants only as to the records specified below.1 In doing so, I do not purport to provide an answer to the above muchdebated questions nor an affirmation or repudiation of the official government conclusion as to the cause of the flight's crash.
SUMMARY DISCLOSURE
MORI NTSB PLAINTIFF JUDGMENT REQUIRED
551 GRANT NO
552 48 DENY YES
553 GRANT NO
554 12 DENY YES
555 GRANT NO
556 1 GRANT NO
302 DENY YES
380 33 66 DENY YES
382 34 76 DENY YES
382 35 77 DENY YES
??? 36 78 DENY YES
NSA Computer Program GRANT NO
The genesis of this suit lies in the tragic crash of Trans World Airline ("TWA") Flight 800 ("Flight 800"). On July 17, 1996, Flight 800 departed from John F. Kennedy International Airport in New York City, en route to Charles de Gaulle International Airport in Paris, France. The aircraft crashed into the Atlantic Ocean twelve minutes after departure. There were no survivors of the accident and the aircraft, a Boeing 747-131, was destroyed. Some eyewitnesses recounted having seen Moye Decl., Ex. IV, at p. 278.
The National Transportation Safety Board ("NTSB") is an independent federal agency charged with investigating civil aviation accidents in the United States. 49 C.F.R. §§ 800.3, 831.2. The NTSB conducts investigations in order to determine the circumstances relating to and the probable causes of accidents and to make safety recommendations that are intended "to prevent similar accidents or incidents in the future." Id. § 831.4. The NTSB has the authority to designate parties to assist the agency in conducting an accident investigation. Id. § 831.11 (). Following an accident investigation, the NTSB issues its probable cause determination and safety recommendations in an official report. Id. § 831.4.
Per its mandate, the NTSB conducted an investigation of Flight 800. The NTSB appointed several entities as party participants to assist in the investigation, including the Boeing Commercial Airplane Group ("Boeing CAG") and the Air Line Pilots Association ("ALPA").3 Boeing also voluntarily provided information to the NTSB and Central Intelligence Agency ("CIA") concerning flight characteristics and performance of Boeing 747s. Third Buroker Decl., at ¶ 10. The investigation of Flight 800 eventually produced a public docket containing approximately 2,750 documents. Public hearings were held in December 1997 and in August 2000. On August 23, 2000, the NTSB adopted the "Aircraft Accident Report: In-flight Breakup Over The Atlantic Ocean" (the "Accident Report") as the official NTSB accident report, on Flight 800. See Moye Decl., Ex. IV. The parties do not dispute that the Accident Report constitutes the NTSB's final conclusion as to the probable cause of the Flight 800 accident, although Plaintiff claims that the CIA animation, see infra, also constitutes a final conclusion.
The NTSB concluded that during the initial break-up of the aircraft, the forward fuselage detached from the remainder of the aircraft. The remainder briefly continued to climb in "crippled flight." See Moye Decl., Ex. IV, at pp. 288, 290. Plaintiff Lahr calls this conclusion, of which he is skeptical, the "zoom-climb" conclusion.4
Dennis Crider, a National Resource Specialist for Vehicle Simulation in the Vehicle Performance Division of the NTSB, was assigned to the investigation of Flight 800. Crider was tasked with determining the trajectories of parts of the aircraft and the flight path of the main wreckage following the loss of the forward fuselage. Crider Decl, at ¶¶ 3-5. Crider developed four reports in the course of his involvement with the Flight 800 investigation: the Trajectory Study, the Main Wreckage Flight Path Study ("Flight Path Study") and the Errata to the Main Wreckage Flight Path Study, Addendum I to the Flight Path Study ("Addendum I"), and Addendum II to the Flight Path Study ("Addendum II"). These reports form a part of the extensive Flight 800 public docket and were considered by the NTSB panel (the "Safety Board") prior to its issuance of the Accident Report.
On October 8, 2003, Plaintiff H. Ray Lahr Med over one hundred Freedom of Information Act ("FOIA") requests with the NTSB and CIA, many of which have since been withdrawn. Lahr basically seeks the records upon which the four Crider reports, two video animations shown at the 1997 public hearing, and one CIA animation broadcast on the Cable News Network ("CNN")5 are based. The requests are divided into eleven distinct categories (many of the requests fall into more than one category):
A. All records of formulas used by the NTSB in its computations of the zoom-climb conclusions;
B. All records of the weight and balance data used by the NTSB in its computations of the zoom-climb conclusions;
C. All records of the formulas and data entered into the computer simulations regarding the NTSB's zoom-climb conclusions;
D. All records reflecting whether or not the NTSB conducted the computer simulations in-house, and, if not, all records of when, where, and by whom the computer simulations were performed;
E. The computer simulation programs used by the NTSB and CIA;
F. The printout of the computer simulations used by the NTSB;
G. All records of the timing sequence of the zoom-climb, including, but not limited to radar, radio transmissions, and the flight data recorder ("FDR");
H. All records of the correlation of the zoom-climb calculations with the actual radar plot;
I. All records of the information provided by Boeing to the NTSB used by the NTSB to calculate these zoom-climb conclusions;
J. All records of the process by which the NTSB arrived at its zoom-climb conclusions;
K. All records generated or received by the NTSB used in its computations of its zoom-climb conclusions.
The NTSB and CIA performed searches for these records and located a number of responsive records in the public docket and in responses to prior FOIA requests made by Lahr. They released certain records to Lahr, some of which were redacted. Lahr challenges the adequacy of the agencies' searches and the agencies' decisions to withhold, in full or in part, various records. The agencies assert that their searches were adequate, that they have turned over all responsive records to Lahr and that they have properly withheld records, in full or in part, under provisions of FOIA that create exemptions from the statute's fundamental mandate of disclosure.
"[A]s a general rule, when documents are within FOIA's disclosure provisions, citizens should not be required to explain why they seek the information." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 172, 124 S.Ct. 1570, 158 L.E d.2d 319 (2004). Here, however, the Government's basis for withholding many of the contested records is Exemption 7(C) under FOIA, which permits the government to withhold information compiled for law enforcement purposes that "could reasonably be expected to constitute an unwarranted invasion of personal privacy." In such circumstances, "to balance the competing interests in privacy and disclosure [that courts must weigh in applying...
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