Wolk Law Firm v. U.S. Nat'l Transp. Safety Bd.

• Decision Date: 18 June 2019
• Docket Number: CIVIL ACTION NO. 16-05632
• Citation: 392 F.Supp.3d 514
• Parties: The WOLK LAW FIRM, Don Goldstein, and Ingrid Goldstein, Plaintiffs, v. UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

392 F.Supp.3d 514

The WOLK LAW FIRM, Don Goldstein, and Ingrid Goldstein, Plaintiffs,

v.UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD, Defendant.

CIVIL ACTION NO. 16-05632

United States District Court, E.D. Pennsylvania.

Filed June 18, 2019

Michael S. Miska, Cynthia Marie Devers, The Wolk Law Firm, Philadelphia, PA, for Plaintiffs.

Margaret L. Hutchinson, Stacey L.B. Smith, Veronica Jane Finkelstein, U.S. Attorney's Office, Philadelphia, PA, for Defendant.

AMENDED MEMORANDUM¹

EDUARDO C. ROBRENO, District Judge

I. INTRODUCTION

Plaintiffs are a law firm retained to represent aircraft accident victims and their families, and the parents of Mark Goldstein, an aircraft accident victim. ECF No. 16 ¶¶ 1, 3. The Amended Complaint only identifies the Goldstein family as clients of the law firm. Id. ¶ 4.

Plaintiffs filed this suit against the National Transportation Safety Board (NTSB) because the NTSB has denied Plaintiffs' Freedom of Information Act (FOIA) requests² for documents related to seven aircraft accident investigations.³ See id. ¶¶ 10-14. Plaintiffs requested the NTSB to produce various types of materials, including "investigation materials," "missing pieces of the [Goldstein] accident aircraft wreckage," "logbooks and video footage of the accident," and "data download from equipment onboard the accident aircraft." See id. ¶ 13.

Earlier in the litigation, the Court granted the NTSB's motion to dismiss Count I -- "Obstruction of Justice and Violation of Due Process". See ECF No. 15. Only Count II remains in this case -- "Violation of the Freedom of Information Act".

The NTSB filed a motion for summary judgment. ECF No. 51. The NTSB's briefing includes a " Vaughn" index, ECF No. 51-1, that describes the nature of the materials it continues to withhold from Plaintiffs and the reason why those materials are being withheld. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The NTSB also submitted copies of documents and videos to the Court for in camera review.

Upon consideration of the parties' arguments, and following an in camera review, the Court finds that the NTSB properly denied Plaintiffs' FOIA requests for the documents and videos.

Furthermore, the Court is not authorized under the FOIA to order the production of the aircraft wreckage because it is not an agency record, and the NTSB has not withheld chain of custody documents concerning the wreckage.

II. LAW

The FOIA confers federal jurisdiction to enjoin a federal agency from withholding agency records that are improperly being withheld. 5 U.S.C. § 552(a)(4)(B) ; U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) (explaining that federal jurisdiction exists to determine whether there are improperly withheld agency records). "For purposes of the FOIA, the term ‘records’ does not include tangible objects." Friedman v. U.S. Secret Serv., 923 F. Supp. 2d 262, 275 (D.D.C. 2013).

The "FOIA creates a presumption favoring disclosure" of Government documents. Manna v. U.S. Dep't of Justice, 51 F.3d 1158, 1163 (3d Cir. 1995). Furthermore, as a predicate to granting FOIA relief, the agency records must have been withheld. See 5 U.S.C. § 552(a)(4)(B) ; Tax Analysts, 492 U.S. at 142, 109 S.Ct. 2841. However, certain categories of documents are exempt from the FOIA's production requirements, i.e., an agency may withhold materials that fall within one or more of the nine enumerated exemptions. See 5 U.S.C. § 552(b). As relevant to this case, by statutory exemption number, the FOIA does not apply to matters and materials that are:

(2) related solely to the internal personnel rules and practices of an agency;

(3) specifically exempted from disclosure by statute if that statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue or establishes particular criteria for withholding or refers to particular types of matters to be withheld;

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

(5) inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested; and

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Id.

A district court reviews an agency's use of a FOIA exemption to withhold documents de novo. Id. § 552(a)(4)(B).

The agency has the burden of showing that a statutory exemption applies. Id.; see also Manna, 51 F.3d at 1163 (citing McDonnell v. United States, 4 F.3d 1227, 1241 (3d Cir. 1993) ).

The agency can sustain its burden under the FOIA by submitting a detailed explanation, that can take many different forms and combinations, that "describe[s] the material withheld and detail[s] why it fits within the claimed exemption." McDonnell, 4 F.3d at 1241 ; Lame v. U.S. Dep't of Justice, 654 F.2d 917, 922 (3d Cir. 1981) ("[T]he district court must have furnished to it, in whatever form, public or private, all of the detailed justifications advanced by the government for non-disclosure."). The court may order the agency to submit copies of the withheld materials for in camera review. 5 U.S.C. § 552(a)(4)(B) ; see also Ferri v. Bell, 645 F.2d 1213, 1225–26 (3d Cir. 1981), modified, 671 F.2d 769 (3d Cir. 1982).

The agency is entitled to summary judgment in a FOIA case if the agency "describe[s] the withheld information and the justification for withholding [it] with reasonable specificity, demonstrating a logical connection between the information and the claimed exemption" and the agency's submissions in support of withholding "are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Manna, 51 F.3d at 1163-64 (quoting Am. Friends Serv. Comm. v. Dep't of Def., 831 F.2d 441, 444 (3d Cir. 1987) ). The court may also grant summary judgment after in camera review. See Lame v. U.S. Dep't of Justice, 767 F.2d 66, 71-72 (3d Cir. 1985) ; Cuccaro v. Sec'y of Labor, 770 F.2d 355, 356-57, 361 (3d Cir. 1985).

III. DISCUSSION

Plaintiffs seek the production of documents and other materials in connection with seven NTSB aircraft accident investigations. See ECF No. 51 at 4-7; ECF No. 52-1 at 2. In support of its motion for summary judgment, the NTSB identified and argued the applicability of at least one of Exemptions 2, 3, 4, 5, or 6 as the basis for withholding each of the materials listed in the Vaughn index. See ECF No. 51-1. The majority of the materials were withheld pursuant to Exemption 5. See id. In some instances, Exemptions 5 and 6 are asserted.

Below, the Court addresses by exemption category whether the asserted exemptions properly apply to the withheld materials. The Court also addresses Plaintiffs' request for aircraft accident wreckage and related documents.

A. Exemption 2

Under Exemption 2, an agency may withhold materials that are:

related solely to the internal personnel rules and practices of an agency.

5 U.S.C. § 552(b)(2).

Plaintiffs did not argue in their opposition briefing that the NTSB had improperly withheld materials under Exemption 2. See ECF No. 52-1.

The Court agrees with the NTSB that Exemption 2 applies to the withheld communications that concern requests for "compensatory and overtime pay for work during the investigation." ECF No. 51 at 11; see Milner v. Dep't of Navy, 562 U.S. 562, 570 & n.4, 581, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011).

B. Exemption 3

Under Exemption 3, an agency may withhold materials that are:

specifically exempted from disclosure by statute if that statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue or establishes particular criteria for withholding or refers to particular types of matters to be withheld.

5 U.S.C. § 552(b)(3).

The NTSB argues that a video taken by a passenger on the aircraft using a cell phone is exempted from disclosure by statute. ECF No. 51 at 12. The statute, 49 U.S.C. § 1114(c), prohibits the NTSB from disclosing a recording made by cockpit video recorder (CVR):

[The NTSB] may not disclose publicly any part of a cockpit voice or video recorder recording or transcript of oral communications by and between flight crew members and ground stations related to an accident or incident investigated by the [NTSB].

49 U.S.C. § 1114(c)(1) (emphasis added).

The NTSB further argues that the CVR statute falls within the ambit of Exemption 3 because, by the terms of the statute, the NTSB has no discretion on the issue of disclosure. ECF No. 51 at 12-13.

As to whether the cell phone video at issue qualifies as a CVR recording, the NTSB argues that it interprets the statute to include "videos of the interior of the cockpit taken with a cell phone." Id. The NTSB further argues that it is entitled to deference on this interpretation. Id.

In response, Plaintiffs do not rebut any of the NTSB's arguments that the CVR statute is an Exemption 3 statute, the NTSB correctly interpreted the CVR statute, or that the cell phone video is CVR statute material. Instead, Plaintiffs respond that Congress "has explicitly authorized courts to order production of onboard video under 49 U.S.C. § 1154." ECF No. 52-1 at 5. Plaintiffs argue that "under 49 U.S.C. § 1154, the video recording may be produced in discovery," provided certain conditions are met.⁴ Id. at 14-15.

Plaintiffs further argue that "virtually every court that has addressed the issue has held the CVR recording discoverable, since it is likely to lead to the discovery of evidence that is relevant to the allegations of the parties involved." Id. at 16 (citing eight pan-United States federal and state court decisions⁵ ).

To evaluate whether an agency has properly invoked Exemption 3, the Court...