Weber Aircraft Corp., a Div. of Walter Kidde and Co., Inc. v. U.S.

• Decision Date: 21 September 1982
• Docket Number: No. 80-5744,80-5744
• Citation: 688 F.2d 638
• Parties: WEBER AIRCRAFT CORPORATION, A DIVISION OF WALTER KIDDE and COMPANY, INC., and Mills Manufacturing Corporation, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 638

688 F.2d 638

WEBER AIRCRAFT CORPORATION, A DIVISION OF WALTER KIDDE and COMPANY, INC., and Mills Manufacturing Corporation, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 80-5744.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 27, 1981.

Decided Sept. 21, 1982.

Marshall Silberberg, Kirtland & Packard, Lawrence J. Galardi, Los Angeles, Cal., for plaintiffs-appellants.

Volney V. Brown, Asst. U.S. Atty., Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before CANBY and NORRIS, Circuit Judges, and SMITH, ^* District Judge.

NORRIS, Circuit Judge:

The principal issue in this case is whether witness statements given under a promise of confidentiality to an Air Force aircrash investigation board are exempt from the mandatory disclosure provisions of the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The district court held that the government was authorized to withhold the documents by Exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5), ¹ and by traditional equity principles. We reverse and remand.

I. BACKGROUND

Captain Richard Hoover sustained serious injuries when he ejected from an Air Force airplane after the engine had failed. Under Air Force regulations governing inquiries into significant air crashes, the Air Force performed two investigations. A "collateral investigation" was conducted "to preserve available evidence for use in claims, litigation, disciplinary actions, administrative proceedings, and all other purposes." A.F. Reg. 110-14 P 1(a) (July 18, 1977). ² A "safety investigation," on the other hand, was conducted by a specially appointed Mishap Investigation Board, which produced a Mishap Report, a "privileged document" intended for "the sole purpose of taking corrective action in the interest of accident prevention." A.F. Reg. 127-4 P 19(a)(1) (Jan. 1, 1973). ³

Hoover sued designers of various parts of his parachute pack and harness assembly including Weber Aircraft Corporation (Weber), the initial designer, and Mills Manufacturing Corporation (Mills), the manufacturer of the canopy. After the suit was filed, Weber and Mills requested copies of all Air Force investigation reports pertaining to the accident. In response, the Air Force released the complete record of the collateral investigation and what the Air Force termed the factual portions of the Mishap Report, but withheld a number of documents, claiming they were exempt from mandatory disclosure under Exemption 5.

Weber and Mills then filed this action under the FOIA, seeking an injunction requiring the Air Force to disclose the withheld portions of the Mishap Report. The district court denied the injunction and granted the government's motion for summary judgment. On appeal, Weber and Mills claim the district court erred in not compelling production of (1) the witness statements of Captain Hoover and Airman Dickson, ⁴ and (2) the withheld portions of medical reports submitted to the Mishap Board.

II. EXEMPTION 5

A. The Witness Statements

The first issue is whether Exemption 5 permits the government to withhold statements of military personnel given under a promise of confidentiality to an Air Force accident investigation board. This is an issue of first impression in the Ninth Circuit.

Exemption 5 protects "intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency." The documents here are clearly intra-agency memoranda. ⁵ The issue is how broadly we should construe the phrase "not ... available by law." In EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), the Supreme Court left open the possibility that Exemption 5 might incorporate all civil litigation privileges: "Exemption 5 contemplates that the public's access to internal memoranda will be governed by the same flexible, commonsense approach that has long governed private parties' discovery of such documents involved in litigation with Government agencies." Id. at 91, 93 S.Ct. at 837. More recently, however, the Court noted that "it is not clear that Exemption 5 was intended to incorporate every privilege known to civil discovery." Federal Open Market Committee v. Merrill, 443 U.S. 340, 354, 99 S.Ct. 2800, 2809, 61 L.Ed.2d 587 (1979). Because the Court developed a new analysis of the interplay between Exemption 5 and civil litigation privileges, we now consider Merrill and its implications.

1. The Merrill analysis.

In Merrill, the Federal Open Market Committee (Committee) sought nondisclosure of certain monetary policy directives for the month during which they were in effect. The government first argued broadly that "Exemption 5 confers general authority upon an agency to delay disclosure of intra-agency memoranda that would undermine the effectiveness of the agency's policy if released immediately." 443 U.S. at 353, 99 S.Ct. at 2808. The Court flatly rejected that contention, id., emphasizing that the government must rest its claim "on a privilege enjoyed by the Government in the civil discovery context," id. at 354, 99 S.Ct. at 2809.

The Court then agreed with the government's contention that the Committee's monetary policy directives could plausibly be shielded from civil discovery by a qualified privilege for confidential commercial information. Id. at 355-56, 99 S.Ct. at 2809-2810. At the same time, the Court stressed that Exemption 5 should not be construed to incorporate all civil litigation privileges. Id. at 354, 99 S.Ct. at 2809. Noting that the legislative history to Exemption 5 "expressly mentioned" two privileges-attorney work product and the executive privilege for predecisional deliberations-the Court warned that a claim that Exemption 5 incorporates any other privilege "must be viewed with caution." Id. at 355, 99 S.Ct. at 2809. The Court then considered whether Exemption 5 incorporates any other civil discovery privilege, specifically the privilege for confidential commercial information.

The Court in Merrill first reviewed the legislative history of the FOIA for evidence that Congress intended to incorporate this specific privilege into Exemption 5. The Court found evidence in the House Report on the FOIA, H.R. Rep. No. 1497, 89th Cong., 2d Sess. 10 (1966), that Congress "specifically contemplated a limited privilege for confidential commercial information." 443 U.S. at 359, 99 S.Ct. at 2811. As we read Merrill, this finding is the linchpin of the Court's analysis: Exemption 5 embraces only those civil discovery privileges explicitly recognized in the legislative history. Justice Stevens, in dissent, stated without rebuttal that the Court "proposes ... that only those privileges that are recognized in the legislative history of FOIA should be incorporated in the Exemption." Id. at 366 n. 2, 99 S.Ct. at 2815 n. 2 (Stevens, J., dissenting).

The Merrill opinion went on to determine whether incorporating into Exemption 5 a qualified civil-litigation privilege for confidential commercial information would substantially duplicate the effect of any other FOIA exemption. Id. at 360, 99 S.Ct. at 2812. We think it clear, however, that the Court would not have undertaken this second step in its analysis unless it had first determined from the legislative history that Congress specifically intended Exemption 5 to encompass the privilege for confidential commercial information.

2. Brockway and Cooper.

Before the Supreme Court decided Merrill, the Fifth and Eighth Circuits held that Exemption 5 permits nondisclosure of witness statements given to military aircraft investigation boards under a promise of confidentiality. Cooper v. Department of the Navy, 558 F.2d 274, 278-79 (5th Cir. 1977), modified on other grounds, 594 F.2d 484, cert. denied, 444 U.S. 926, 100 S.Ct. 266, 62 L.Ed.2d 183 (1979); Brockway v. Department of the Air Force, 518 F.2d 1184, 1193 (8th Cir. 1975). The Air Force relies heavily on these cases as precedent for nondisclosure of the witness statements.

Both courts held that, because Exemption 5 protects information unavailable "by law," the exemption incorporates the civil-discovery privilege found in Machin v. Zuckert, 316 F.2d 336 (D.C. Cir.), cert. denied, 375 U.S. 896, 84 S.Ct. 172, 11 L.Ed.2d 124 (1963). Brockway, 518 F.2d at 1190-91; see Cooper, 558 F.2d at 277. Machin held that the Air Force was privileged from disclosing in civil discovery statements given to a military accident investigation board under a promise of confidentiality. 316 F.2d at 339. In Machin, the D.C. Circuit had expressed concern that disclosure in civil litigation discovery would "hamper the efficient operation of an important Government program and perhaps even ... impair the national security by weakening a branch of the military." Id. Reasoning that incorporation of the Machin privilege into Exemption 5 would serve the purposes of that exemption, and protect the military's "deliberative processes," the Cooper and Brockway courts both concluded that Exemption 5 incorporates that privilege. 558 F.2d at 277; 518 F.2d at 1194.

3. Merrill Applied.

Guided by the Merrill analysis, we now consider whether the Brockway and Cooper courts were correct in concluding that Exemption 5 incorporates the Machin privilege, which the Supreme Court termed the executive "privilege for 'official government information' whose disclosure would be harmful to the public interest." Merrill, 443 U.S. at 355 n. 17, 99 S.Ct. at 2810 n. 17. ⁶

For purposes of our analysis, we assume that the witness statements here would be shielded from civil discovery under the Machin privilege. See Machin, 316 F.2d at 339; see also Merrill, 443 U.S. at 355 n. 17, 99 S.Ct. at 2810 n. 17. We therefore apply the Merrill analysis to determine whether Congress intended Exemption 5 to protect factual material shielded from civil discovery by the Machin privilege.

The critical step in the Merrill...