In a case of first impression, the United States Court of Appeals for the Fifth Circuit has greatly strengthened the NTSB’s ability to avoid disclosing communications between the NTSB and parties to an accident investigation.
Before discussing the case, it is important to understand the purpose of NTSB investigations and how they are conducted. After any serious aircraft, rail, pipeline, or trucking accident, it is the job of the NTSB to investigate, find all relevant facts, determine the probable cause of the accident, and issue safety recommendations. See 49 C.F.R. § 831.4 (2016); 49 U.S.C. § 1131(a)(1)(A). However, the agency does not assign the “blame of any person or entity.” 49 C.F.R. §§ 831.4, 835.2; 49 U.S.C. § 1154(b). Investigations are supervised by an “Investigator in Charge,” (IIC) who can assign private entities to be “parties” to aid in the investigation. In order to qualify as a party, the person or entity must have relevant technical skill or information. All parties to an investigation must sign an agreement requiring them to make full disclosure of any relevant information they have. In addition, the parties are forbidden from using the investigation to prepare for litigation.
The case, captioned Jobe v. Nat’l Transportation Safety Bd., No. 20-30033, 2021 WL 2472490 (5th Cir. June 17, 2021), arose out of the 2011 crash of sightseeing helicopter in Hawaii that killed the pilot and all four passengers. The crash was subsequently investigated by the National Transportation Safety Board, and the helicopter operator, the helicopter manufacturer, and the helicopter engine manufacturer were all parties to the investigation.
After the conclusion of the investigation, a lawyer representing families of the crash victims filed a request under the Freedom of Information Act (FOIA) for all relevant documents in the NTSB’s possession. The NTSB produced thousands of pages of documents but withheld some documents pursuant to Exemption 5 of FOIA. This exemption protects certain types of inter-agency or intra-agency memorandums or letters. The lawyer ultimately filed an appeal of this decision in federal court. The district court ruled that the communications between the NTSB and the outside parties to the investigation were not “intra-agency communications” and should be produced.
The NTSB appealed the decision to the Fifth Circuit. The NTSB noted that when a federal agency hires an outside consultant to help in decision making, that consultant is treated as part of the agency for purposes of FOIA Exemption 5. The NTSB argued that based on this principle, the parties to the investigation, such as the helicopter operator and manufacturers, should be treated as consultants retained by the agency to aid in its decision-making and the communications should be exempt from disclosure.
Plaintiff countered this argument by claiming that the parties to the investigation are “self-interested” in the outcome of the inquiry and that they use the investigation to gather facts that will assist them in future litigation. As a result, Plaintiff argued that they cannot be considered neutral consultants for the agency, and that therefore their communications don’t fit under FOIA Exemption 5.
The Fifth Circuit reversed the lower court and ruled that the communications are exempt from disclosure under FOIA. The Court noted that the IIC is in complete control of the investigation, and that the parties may not take actions or release information without approval from the IIC. In addition, each party signs an agreement stating that they will not use their participation in the investigation to prepare for litigation or advance other such interests. Moreover, the IIC has the authority to expel a party from the investigation if it fails to follow instructions or acts in a manner prejudicial to the investigation. As a result, the Court found that parties to an NTSB investigation should be treated as outside consultants for purposes of Exemption 5.
To put this decision in perspective, the case only involved 215 of the over 13,000 pages of documents related to the crash held by the NTSB. The opinion does not interfere with the disclosure of factual information related to the crash. The ruling reflects a well-reasoned balance between full disclosure of all document held by the government, and ensuring that the parties and the NTSB are free to engage in a wide-ranging and frank discussion of issues to arrive at the correct probable cause of an accident.