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BRITISH AIRPORTS AUTH. v. CAB

January 14, 1982

BRITISH AIRPORTS AUTHORITY, Plaintiff,
v.
CIVIL AERONAUTICS BOARD, Defendant



The opinion of the court was delivered by: GASCH

MEMORANDUM

Plaintiff British Airports Authority (BAA) brings this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976), to compel the Civil Aeronautics Board (CAB) to release certain documents relating to airport user fees *fn1" charged by plaintiff *fn2" for use of airports in the United Kingdom. Although defendant released certain documents in response to plaintiff's administrative FOIA request, three classes of documents remain in dispute: (1) a 2 page intra-agency memorandum prepared by Joseph R. Chesen, a Senior Transportation Industry Analyst for CAB, describing an inter-agency meeting on BAA user fees attended by Mr. Chesen; (2) 25 pages of handwritten notes prepared by Mr. Chesen relating to various aspects of BAA user fees; and (3) 35 Department of State documents received by Mr. Chesen in the course of inter-agency discussions regarding the United States' position in bilateral talks with the British Government on BAA user fees. Defendant asserts various exemptions to justify its refusal to disclose each of these classes of documents. As to the first class, the CAB contends that the 2 page memorandum is exempt under FOIA exemption 5 as an intra-agency memorandum that would not be "available by law to a party other than an agency in litigation with the agency," 5 U.S.C. § 552(b)(5), under exemption 3 as material specifically exempted from disclosure by section 1104 of the Federal Aviation Act of 1958, 49 U.S.C. § 1504 (1976), and, as to parts of the memorandum, under exemption 4 as "trade secrets and commercial or financial information obtained from a person and privileged or confidential," 5 U.S.C. § 552(b)(4). As to the second class of documents, defendant's primary argument is that the 25 pages of handwritten notes prepared by Mr. Chesen are not agency documents within the meaning of the FOIA, but rather are the personal property of Mr. Chesen and, hence, not subject to disclosure under the FOIA. In the alternative, defendant asserts that all but one of these 25 pages, if deemed agency documents, are properly withheld under exemptions 3, 4, and 5 for reasons essentially the same as those asserted with regard to Mr. Chesen's 2 page memorandum. Finally, as to the third class of disputed documents, defendant contends that the 35 State Department documents are not within the control of the CAB because the CAB lacks both the authority to release them and the knowledge and information necessary to evaluate whether they are properly disclosable under the FOIA. In light of these facts, and because the CAB referred this part of plaintiff's FOIA request directly to the State Department for that agency's resolution, defendant argues that this Court is without jurisdiction to compel the release of these documents. All of these contentions by defendant are supported by an 8 page Vaughn affidavit filed by Mr. Chesen. See Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974); cf. Goland v. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339, 351 (D.C.Cir.1978) (noting that the sufficiency of a particular Vaughn index is determined under the facts and circumstances of each case), cert. denied, 445 U.S. 927, 100 S. Ct. 1312, 63 L. Ed. 2d 759 (1980). Because the Court finds defendant's Vaughn affidavit more than adequate to conduct a reasoned de novo judicial determination and to enable plaintiff to participate meaningfully in the adjudicatory process, see Vaughn v. Rosen, 484 F.2d at 824-26, and because the Court determines that the documents are indeed properly withheld, summary judgment will be entered for defendant as to the first category of documents and the complaint dismissed for lack of jurisdiction as to the last two categories of documents.

 I. BACKGROUND.

 Plaintiff BAA is a corporate entity set up pursuant to British statute and responsible for the establishment and collection of fees imposed upon users of airports in the United Kingdom, including U.S. airlines. See note 2 supra. The United Kingdom and the United States have been parties to a continuing series of bilateral negotiations concerning these user fees. See Affidavit of Joseph R. Chesen, pp. 1, 3, 4 (dated July 13, 1981) (cited subsequently as Chesen Aff.). In preparation for these negotiations, the CAB has engaged in inter-agency consultations with the State Department, the Federal Aviation Administration (FAA), and the Department of Transportation to develop the United States' position and strategies in the bilateral negotiations with the United Kingdom. In addition, certain U.S. airlines have participated in some of the inter-agency discussions. These U.S. airlines, specifically Pan American World Airways (Pan Am) and Trans World Airlines (TWA), also have filed suit in the United Kingdom against the BAA to challenge the validity of certain user fees assessed against them.

 Defendant's Vaughn affiant, Mr. Chesen, has represented the CAB both in the inter-agency consultations described above and in the bilateral United States-United Kingdom negotiations over user fees. Chesen Aff. p. 1. By virtue of this role, Mr. Chesen either has created or obtained copies of all the documents at issue in the present case. See Chesen Aff. pp. 1, 6, 7.

 The second category of documents consists of 25 pages of personal, handwritten notes taken by Mr. Chesen during the course of the inter-agency consultations and bilateral negotiations discussed above. According to Mr. Chesen's affidavit, these notes record his impressions of the particular points made, and positions adopted by, the various participants at these meetings. He states that he prepared the notes solely to assist him in preparing oral and written reports for other CAB officials and that he has never disclosed them to anyone other than the Government attorneys handling this FOIA case. The notes have at all times been kept in Mr. Chesen's personal office files. Chesen Aff. P 5(b).

 The final category of documents consists of 35 State Department documents received by Mr. Chesen during the course of inter-agency consultations on the issue of British airport user fees. In responding to plaintiff's BAA's FOIA request for these documents, defendant followed longstanding CAB policy, adopted pursuant to guidance from previous FOIA memoranda circulated by the United States Attorney General, *fn3" and referred the request directly to the State Department, the generating agency. The CAB followed this procedure because the 35 documents in question were generated by State and were subject to State's classification/declassification authority. Chesen Aff. P 6. After referral, State responded directly to the BAA's request by providing copies of some of the documents, but denying access to all or part of twenty-five of the documents. See Letter from Thomas W. Ainsworth, Director, Mandatory Review, Department of State Bureau of Administration, to Joseph W. Dorn, Counsel for British Airports Authority (April 22, 1981); note 7 infra. As to the documents withheld, State informed BAA that an appeal to the Assistant Secretary of State could be filed within 60 days. Apparently, BAA did not pursue this avenue of appeal, but instead continued to pursue these documents through the CAB.

 DISCUSSION

 As an initial matter, the Court rejects plaintiff's contention that defendant's Vaughn affidavit, submitted on behalf of the CAB by Mr. Chesen, is in some way insufficient to support the exemptions claimed for the documents at issue. The Court has read Mr. Chesen's Vaughn affidavit with care and concludes that the document fully comports with the requirements established by Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974), and its progeny, see, e.g., Coastal States Gas Corp. v. DOE, 617 F.2d 854, 861 (D.C.Cir.1980); Founding Church of Scientology, Inc. v. Bell, 195 U.S. App. D.C. 363, 603 F.2d 945, 949 (D.C.Cir.1979) (per curiam).

 As stated by our Court of Appeals on numerous occasions, a principal purpose of a Vaughn index is "to facilitate court review of agency FOIA rulings by making clear the basis for the agency's refusal to release certain information." Founding Church of Scientology, Inc. v. Bell, 603 F.2d at 948; see Coastal States Gas Corp. v. DOE, 617 F.2d at 861 (noting that "conclusory assertions of privilege will not suffice to carry the Government's burden of proof in defending FOIA cases"). The court in Founding Church of Scientology went on to specify the particular attributes of an adequate Vaughn index:

 
(1) The index should be contained in one document, complete in itself.
 
(2) The index must adequately describe each withheld document or deletion from a released document.
 
(3) The index must state the exemption claimed for each deletion or withheld document, and explain why the exemption is relevant. Of course the explanation of the exemption claim and the descriptions of withheld material need not be so detailed as to reveal that which the agency wishes to conceal, but they must be sufficiently specific ...

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