Flyers Rts. Educ. Fund, Inc. v. FAA, No. 21-5257, 2023 WL 4279214 (D.C. Cir. June 30, 2023) (Tatel, J.)

Flyers Rts. Educ. Fund, Inc. v. FAA, No. 21-5257, 2023 WL 4279214 (D.C. Cir. June 30, 2023) (Tatel, J.)

Re:  Request for records FAA relied upon during recertification process for manufacturer’s model of airplane that had been involved in two fatal crashes

Disposition:  Affirming district court’s grant of government’s cross-motion for summary judgment and denial of requester’s motion for summary judgment

• Exemption 4:  First, the Court of Appeals for the District of Columbia Circuit relates that “[the requester] does not argue that Exemption 4 always requires an assurance of secrecy.”  “Instead, it proposes a more modest corollary:  a person loses ‘“any reasonable expectation”’ of confidentiality if it gives documents to the government after receiving ‘“an explicit representation . . . that its confidential information will be disclosed.”’”  “The FAA ‘does not dispute’ [the requester’s] proposed standard because ‘submitting information to the government when the submitter knew or reasonably should have known that the information would be made public is antithetical to “confidential” treatment.’”  “The FAA insists, however, that it never told [the submitter] that it would release these documents.”  The court holds that “[t]he FAA’s broad promises of ‘transparency’ and ‘open and honest communication’ fall far short of an ‘“explicit representation.”’”  “Moreover, [the submitter] contends that disclosure would ‘undermine [its] competitive position by allowing competitors access to ideas, design details, certification methods, and testing processes.’”  “According to [the submitter], therefore, disclosure would run afoul of FAA policy that the agency ‘must not release proprietary information (descriptive, design, and substantiating data received from applicants)’ without ‘written permission from the applicant.’”  “Given this context, no reasonable factfinder could conclude that the FAA’s generic promises of transparency placed [the submitter] on notice that the FAA would release these documents.”  Additionally, the court considers the submitter CEO’s statements that “[the submitter] ‘will be transparent on every subject, whether it is training, whether it’s the certification process, everything along the way,’ and that ‘[w]e're going to have the most open book the world has ever seen on this subject.’”  The court finds that “[t]hese statements hardly amount to an ‘explicit’ commitment to release these particular proprietary documents, let alone an indication that the FAA would do so.”
  
  Regarding the requester’s challenge of “the FAA’s decision to withhold or redact four documents containing the FAA’s own comments,” the court notes that it previously “upheld the redaction of an agency-authored report because releasing it without redactions ‘would disclose data supplied to the government from a person outside the government.’”  The court finds that “the FAA permissibly redacted its own comments to avoid disclosing confidential commercial information obtained from [the submitter].”  “Citing a pair of district court opinions, [the requester] urges [the court] to hold that Exemption 4 protects agency-authored materials only where they contain third-party information ‘repeated verbatim,’ ‘slightly modified,’ or ‘summarize[d],’ not where, as [the requester] says happened here, the agency ‘analyzes’ or ‘substantially reformulate[s]’ the information.”  “But these standards appear nowhere in the statute.”  “To be sure, sometimes an agency’s analysis or reformulation of confidential commercial information can be disclosed without revealing the underlying information, rendering Exemption 4 inapplicable.”  “And it is important that the agency sufficiently explain why information that it generates cannot be released.”  “Here, however, the FAA has demonstrated that releasing its comments unredacted would reveal confidential commercial information obtained from [the submitter], so Exemption 4 applies.”
  
  “Next, [the requester] argues that the FAA must disclose the documents [the submitter] submitted to show compliance with FAA regulations because those means-of-compliance documents form ‘part of the binding law of the agency.’”  “As [the court has] explained, ‘an agency is not permitted to develop “a body of secret law, used by it in the discharge of its regulatory duties.”’”  “But no court has yet applied this secret-law doctrine to limit the scope of Exemption 4.”  “[The court] need not consider whether that doctrine applies here because [the submitter’s] private means of compliance form no part of the FAA’s body of law, secret or otherwise.”  “True, the ‘FAA and some standards organizations publish means of compliance that have already been accepted,’ and ‘applicants can choose to use these publicly available methods to show compliance with FAA’s certification regulations.’”  “Here, however, [the submitter] developed proprietary means of compliance ‘specifically related to its 737 MAX aircraft,’ . . . and [the requester] identifies no regulation requiring the FAA to allow [the submitter], or anyone else, to use these sui generis means of compliance for any other aircraft.”  “Accordingly, [the submitter’s] means of compliance do not “‘bind[ ] . . . the public,”’ ‘“create or determine the extent of the substantive rights and liabilities of a person,”’ or ‘“speak authoritatively on the [agency’s] policy.’”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  The Court of Appeals for the District of Columbia Circuit holds that “the FAA introduced evidence sufficient to carry its burden on segregability.”  “The Vaughn index describes each document, and [the government’s] Declaration explains that ‘the withheld documents consist almost entirely of [the submitter’s] proprietary technical data’ and its ‘proprietary methods of compliance.’”  “Further tailoring the redactions, [the government] adds, ‘would result in disclosure of only partial sentences or single sentences that are entirely meaningless without the additional context of the surrounding proprietary information.’”  “On top of that, the record contains a [submitter] paralegal’s declaration explaining that the company’s confidential information ‘comprise[s] almost the entirety of’ the documents and that even things ‘which in many documents would be considered ancillary and releasable,’ like tables of contents, ‘present[ ] a roadmap to the methods, logic, and techniques that [the submitter] uses to demonstrate compliance and obtain certification.’”  “The FAA independently evaluated [the submitter’s] objections and withheld or redacted material only where the agency agreed that Exemption 4 applies.”