Flyers Rts. Educ. Fund, Inc. v. FAA, No. 19-3749, 2021 WL 4206594 (D.D.C. Sept. 16, 2021) (Kollar-Kotelly, J.)

Flyers Rts. Educ. Fund, Inc. v. FAA, No. 19-3749, 2021 WL 4206594 (D.D.C. Sept. 16, 2021) (Kollar-Kotelly, J.)

Re:  Request for records concerning FAA's review of design changes to The Boeing Company's 737 MAX in wake of two fatal crashes involving that aircraft

Disposition:  Granting defendant's cross-motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 4:  "[T]he Court finds that the FAA properly withheld the records at issue in this case pursuant to FOIA Exemption 4."  Regarding the contested elements of Exemption 4, first, "[t]he Court concludes that FAA has demonstrated that the information at issue in . . . five records was 'obtained from a person' . . . ."  The court finds that "'[p]erson' is defined in FOIA to include corporations, partnerships, associations, and other private organizations."  Responding to plaintiff's objections that "[certain] Vaughn Index entries . . . describe 'FAA comments,' which are 'generated by the government,' and therefore not provided by a 'person,'" "[t]he Court finds that the FAA has provided sufficient information to conclude that these 'FAA comments' involve information 'obtained from' Boeing, the disclosure of which 'could allow others to extrapolate' Boeing's information."
  
  Second, the court finds that "the FAA has demonstrated that the material it withheld from production satisfies Exemption 4's definition of 'confidential' information."  The court notes that "[plaintiff] does not appear to dispute that FAA has satisfied the first prong of the Food Marketing test – that the withheld information was 'both customarily and actually treated as private' by Boeing."  "[Plaintiff] does, however, contend that two categories of withheld information – 'means of compliance' and 'safety analyses' – involve public information, and so cannot be 'confidential' within the meaning of Exemption 4."  "The FAA acknowledges that some 'means of compliance' methods are publicly available and that applicants for certification can 'choose to use these publicly available methods to show compliance.'"  "But applicants can also 'develop their own means of compliance that are specific to their airplane design, which is not publicly available' because 'an applicant's design will dictate how compliance will be shown[.]'"  "Based on this information, the Court concludes that the FAA has demonstrated that Boeing's 'means of compliance' are not 'binding agency policy' and that they are customarily and actually treated by Boeing as confidential."  "With respect to 'safety analyses,'" "the FAA indicates that the publicly released information to which [plaintiff] refers includes 'layman's terms' descriptions, but the withheld records 'heavily incorporate and describe Boeing's technical data' and include information 'intrinsic to Boeing's design of its proprietary flight control software, and reveals elements of how Boeing designed those proprietary features.'"  "The Court finds that the FAA's explanation and supporting affidavit show that these 'safety analyses' incorporate Boeing's technical and proprietary information, which the company 'customarily and actually' treats as private."  "The Court need not determine whether the second prong of Food Marketing is mandatory because it is satisfied that the withheld information was provided by Boeing to the FAA under an 'assurance of privacy.'"  "The FAA first cites three examples of 'express' assurances of privacy."  "First, the FAA points to its FAA Order 8110.4C, Type Certification, which provides that the FAA 'must not release proprietary information (descriptive, design, and substantiating data received from applicants) to any party who does not have written permission from the applicant (or the certificate holder).'"  "Second, the FAA cites its Advisory Circular 20-179, Certification Data Retention Agreements and Government Records, which advises certificate applicants that FAA employees 'have an obligation to protect your proprietary data from unauthorized release[.]'"  "And third, the FAA notes that it has a longstanding agreement with Boeing, entered on May 24, 1982, requiring the FAA to obtain Boeing's written permission to 'copy or incorporate' Boeing's information into 'FAA prepared airworthiness documents' and to solicit Boeing's response to any request for public disclosure of certain 'Airworthiness approval records.'"  "[Plaintiff] contends that none of these examples of 'express assurances' are sufficient because they merely 'provide that in handling Boeing proprietary information, the agency will comply with the applicable law – including FOIA.'"  "In other words, according to [plaintiff], these examples provide 'no assurance of privacy for any technical or proprietary information not subject to Exemption 4 under otherwise applicable legal standards.'"  "As the FAA observes, this position is not persuasive because FOIA does not mandate public disclosure of 'privileged or confidential' 'commercial or financial information'; it explicitly exempts such information from public release."  "In any event, the supporting declarations of [two declarants] also both detail 'implied' assurances of privacy based on context and the history of the FAA and Boeing's relationship."  "For example, [one declarant] of Boeing states:  'For decades, Boeing has submitted to the FAA information of the sort sought by Plaintiffs with an understanding and expectation that the FAA would treat it as private.'"  "[Boeing's declarant] testifies that 'the FAA has repeatedly made clear, in a variety of guidance documents made available to the industry and the public, that it will protect from public disclosure confidential information submitted by manufacturers such as Boeing in connection with product certification activities to substantiate and demonstrate compliance.'"  "[A declarant] of the FAA further states:  '[T]he FAA has a longstanding history of maintaining confidentiality of documents that applicants provide to show compliance with FAA regulations, and ultimately obtain a type certificate' and 'historically has not released this information to the public without the express consent of the applicant.'"  "The Court concludes that the FAA has carried its burden to demonstrate that the disputed records were provided to the agency under express and implied assurances of privacy, which satisfies the second prong of the Supreme Court's Food Marketing test."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "Granting the FAA its due presumption of regularity, the Court finds that the FAA has discharged its burden concerning segregability with respect to these three categories of records."  "The sworn declaration of [defendant], submitted in support of the FAA's Cross-Motion for Summary Judgment, establishes that each contested document was reviewed 'line by line' and that '[w]here possible, the FAA segregated and release information not covered under any FOIA exemption.'"