FIFTH CIRCUIT DECISION LIMITS FOIA DISCLOSURES REQUIRED BY NTSB
July 14, 2021
On June 17, 2021, the United States Court of Appeals for the Fifth Circuit issued a decision in Jobe v. National Transportation Safety Board, deciding what internal communications must be disclosed by the National Transportation Safety Board (NTSB) in response to a FOIA request. The case arose out of a 2011 helicopter crash in Hawaii. The NTSB investigated the accident, and the helicopter operator, the helicopter manufacturer, and the helicopter engine manufacturer were all included as consultants to assist NTSB with their investigation. After the NTSB completed the investigation and issued their final report, an attorney for the families of accident victims filed a broad FOIA request to include all relevant documents in the NTSB’s possession that were related to the accident. NTSB responded, providing thousands of pages of documents, but ultimately withheld certain documents from disclosure under FOIA Exemption 5, which exempts government agencies from producing certain intra-agency and inter-agency work product. Specifically, NTSB withheld certain internal communications with the three consultants. The attorney for the victims’ families appealed on the grounds that the NTSB’s communications with the three consultants, all of which were outside parties and possible defendants in litigation brought by the victim’s families, should not be considered intra-agency communications. A U.S. District Court agreed with the plaintiffs, finding that communications between the NTSB and outside parties to an investigation were not intra-agency communications subject to Exemption 5 of FOIA.
The Fifth Circuit Court reversed, deciding that NTSB’s communications with outside parties to the investigation should be considered intra-agency communications free from disclosure under Exemption 5 because these outside parties to the investigation are required to sign agreements which limit their ability to take certain actions, release information, or use anything found in the investigation to help prepare for any potential litigation. Furthermore, the court found that allowing these outside companies’ party status and protecting their communications with the NTSB facilitated the investigation and advanced the goal of aviation safety.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com or 202-659-6622); Drew Derco (dderco@eckertseamans.com or 202-659-6665), or Andy Orr (aorr@eckertsemans.com or 202-659-6625).
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