Wolk Law Firm v. NTSB, No. 16-05632, 2019 WL 1528433 (E.D. Pa. Apr. 9, 2019) (Robreno, J.)

Wolk Law Firm v. NTSB, No. 16-05632, 2019 WL 1528433 (E.D. Pa. Apr. 9, 2019) (Robreno, J.)

Re:  Request for records concerning seven aircraft accident investigations

Disposition:  Granting defendant's motion for summary judgment as it concerned FOIA

• Exemption 2:  "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.'"  The court noted that "Plaintiffs did not argue in their opposition briefing that the NTSB had improperly withheld materials under Exemption 2."
   
• Exemption 3:  The court holds that defendant properly withheld a video under "49 U.S.C. § 1114(c), [which] prohibits the NTSB from disclosing a recording made by cockpit video recorder."  "[T]he Court finds that the CVR statute is one that is covered by Exemption 3."  "By its plain terms, § 1114(c)(1) prohibits the NTSB from disclosing the video, and leaves the NTSB with no discretion on the issue."  "[T]he Court finds that cell phone video falls within the material covered by the asserted Exemption 3 statute, 49 U.S.C. § 1114(c)(1)."  "Whether a video is recorded by a device that is attached to the aircraft or is handheld, to the extent video footage of the cockpit is recorded, any differences between the devices are irrelevant."  "What is important is the prohibition on disclosure of recordings made of the cockpit: the manner of recording is immaterial."
   
• Exemption 4:  "The Court agrees with the NTSB that Exemption 4 applies to the withheld record that contains 'commercial information about an aircraft component.'" 
   
• Exemption 5, Deliberative Process Privilege:  "The Court finds that the NTSB properly withheld the materials identified under Exemption 5."  "The Court finds that the materials at issue are protected by the predecisional privilege."  "First, the NTSB is investigating various accidents, and has not yet issued a finding or recommendation as a result of the investigation."  "Second, the materials reflect the give-and-take of the consultative process, including draft documents and correspondence containing questions and answers."  "To the extent the materials have factual information, they are still protected because they represent agency workers’ discretion and judgment calls, for example through the selection, interpretation, or manipulation to generate other factual bases for further use."
   
• Exemption 6:  "The Court finds that the strong privacy interests of the deceased and the relatives of the deceased are not outweighed by any public interest factors which are, at most, minimal."  "The documents reveal little-to-nothing at all about the agency's activities and conduct, rather the documents concern medical issues and medical opinions."  "Accordingly, the death scene photographs, autopsy reports, and medical case reviews were properly withheld under Exemption 6."