Wolk Law Firm v. NTSB, No. 19-1401, 2021 WL 3128665 (E.D. Pa. July 23, 2021) (Savage, J.)

Wolk Law Firm v. NTSB, No. 19-1401, 2021 WL 3128665 (E.D. Pa. July 23, 2021) (Savage, J.)

Re:  Request for records concerning twelve aircraft accident investigations

Disposition:  Granting defendant's motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration:  Responding to plaintiff's challenge concerning the adequacy of defendant's Vaughn Index, the court finds that "[a] Vaughn index need only provide sufficient information for the party requesting information and the trial court to derive from it 'a clear explanation of why each document or portion of document is withheld' under a claimed exemption."  "The Vaughn index here identifies, for each accident, the page or pages withheld or redacted, the description and date of each document, the information redacted or withheld, and the claimed exemption and basis for it."  The court does note that "[a]fter reviewing the Vaughn index, [the court] requested in camera review of a single document because [it was] unable to derive from the index 'a clear explanation of why each document or portion of document is withheld' under the claimed exemption."
   
• Exemption 5, Deliberative Process Privilege:  "[The court] find[s] the NTSB properly withheld documents under the claimed exemptions."  The court relates that "NTSB asserts the deliberative process privilege over the withheld or redacted records because:  (1) they are predecisional and deliberative; (2) the privilege is not limited to records related to a policy decision, and protects records reflecting its 'consultative process' regardless of whether the records contain recommendations regarding law and policy; and (3) the privilege protects factual material where disclosure of purely factual material may expose its deliberative process."  "It contends its Vaughn index provides detailed descriptions of the withheld records of its accident investigations, including notes, calculations, accident summaries, draft reports, communications, analyses, and memoranda."  "The NTSB asserts these documents are both 'predecisional' and 'deliberative' because they reflect input on draft reports and preliminary information on possible causes of the accidents; the potential relevance of certain information to the agency; how the NTSB may have used information during its investigations; investigation strategies; and its investigators' thought processes."  "Because [the court] could not determine whether the NTSB properly withheld [certain] documents . . . under Exemption 5, [it] ordered the NTSB to provide [it] with copies of these documents for in camera review."  "After reviewing these documents in camera, [the court] conclude[s] that they addressed a safety accomplishment proposal and not a final version of the document."  "Therefore, the NTSB also properly withheld the documents under Exemption 5."
   
• Exemption 5, Attorney Work-Product & Attorney-Client Privileges:  Regarding "documents [that] are described as emails seeking legal advice either to or from an NTSB attorney or forwarding of an email from an NTSB attorney," the court notes that "[plaintiff] does not contest the NSTB's assertion of attorney-client and attorney work-product privileges."  The court finds that "[t]he documents identified as emails to or from the NTSB's attorney . . . are protected by the attorney-client privilege and properly withheld under Exemption 5."
   
• Exemption 6:  The court notes that "[plaintiff] only challenges the NTSB's withholding under Exemption 6 of documents, photographs, and videos of [certain] accidents."  "[Plaintiff] seeks accident site photos depicting mutilated human remains; autopsy and toxicology reports; police camera videos depicting the accident site, including images of victims and describing injuries; photographs of personal items found at the accident site and redacted information revealing private information of victims such as home address, driver’s license, date of birth, and credit card numbers."  "[Plaintiff] contends these records do not compromise a substantial privacy interest, the records are relevant and necessary to the investigation of the accidents, and weigh in favor of disclosure."  The court notes that in a "similar challenge to NTSB aircraft accident records withheld under Exemption 6, including death scene photographs, autopsy reports, and medical case reviews, [a different judge in this court found 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' and '[t]he documents reveal little-to-nothing at all about the agency's activities and conduct, rather the documents concern medical issues and medical opinions.'"  The court finds that "[t]he documents are protected by Exemption 6."