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INDERJIT BADHWAR v. UNITED STATES DEPT. OF THE AIR

March 6, 1985

INDERJIT BADHWAR, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE AIR FORCE, et al., Defendants


Oberdorfer, United States District Judge

I.

Plaintiffs are investigative reporters interested in learning and writing about the military's air accident investigation program and action taken pursuant to that program. Defendants are the Departments of the Army, Air Force and Navy, under whose authority these investigations are conducted. The plaintiffs seek three different types of documents from each of the defendants: (1) accident reports relating to particular incidents; (2) all recommendations in accident reports since 1950; and (3) Annual Accident Safety Reports for specified years. *fn1" Defendants claim that evidence and reports of military air crashes are exempt from disclosure pursuant to Exemption 5 of the Freedom of Information Act, 5 U.S.C. § 552(b)(5). They also defend the Air Force's refusal to waive the fee chargeable to those who request documents under FOIA. 5 U.S.C. § 552(a)(4)(A).

 II.

 The documents that have been withheld by the defendants consist of various portions of so-called "safety reports." *fn2" Each Department prepares two types of accident reports: one type, known as the safety report, is kept secret; the other type, known as the collateral report, is normally released. *fn3"

 Each safety report is the work of a board appointed to investigate an accident. To induce witness candor, regulations authorize, if not require, each board to promise that witness statements will be received and kept in confidence. The Navy and the Air Force, and to a lesser extent the Army, routinely promise confidentiality to witnesses. Exceptions are made where, for example, the Jencks Act requires production of a witness statement to a person charged with a crime in connection with an accident, or where Congress requests access to the statements, as well as where the regulations are not strictly honored. Thus, in some instances statements have been taken with a specific pledge of confidentiality. Some statements have been made available to unauthorized readers.

 A safety report typically includes witness statements, other documentary and photographic evidence, findings, conclusions and recommendations. When a safety board completes a report, it is forwarded to the appointing authority for distribution to those responsible for taking any corrective action recommended by the board. A safety board does not take action itself; its end product is typically a recommendation. Compare Defendants' Statement of Material Facts No. 18 & No. 27 with Plaintiffs' Response to Defendants' Statement of Material Facts No. 27.

 The authority that creates the safety board also commissions a "collateral investigation." The collateral investigators prepare an account of the accident and a collection of evidence for use in disciplinary proceedings, civil litigation, and for all other purposes other than accident prevention and aviation safety. The collateral investigation is conducted by personnel not involved in the safety investigation. These investigators have access to the evidence and witnesses presented to the safety board. In addition, the collateral investigators put witnesses under oath and give them no pledge of confidentiality. The collateral report is, in effect, a version of the safety report, expurgated for public consumption. See Defendants' Statement of Material Facts No. 19.

 Plaintiffs contrast the openness of civilian aircraft accident investigations conducted by the National Transportation Safety Board (NTSB) and the relative success of civilian authorities in reducing the civilian aircraft accident rates, with the relatively high rate of accidents involving military aircraft where secrecy is the theme. To confirm their hypothesis that the military policy of secrecy with respect to accident investigation has been counterproductive, plaintiffs seek disclosure of about 17 specific safety reports, as well as some reports about unspecified, similar accidents and all other documents generated since 1950 which reflect safety recommendations.

 The parties have filed cross-motions for summary judgment in response to the Court's suggestion that they focus the issues in the context of a discrete sample of documents. These motions frame as an issue the defendants' obligation to produce in full three specific safety board reports, one from each defendant, *fn4" together with the findings, conclusions, recommendations sections, and witness statements from the report about the C-5A crash near Saigon on April 4, 1975. Plaintiffs also request the Court to require defendants to segregate and disclose factual statements in documents that are found to be generally exempt. Finally, plaintiffs challenge as arbitrary and capricious defendants' decision not to waive document production fees. Defendants take the position that the public interest is not served by the inquiry of these investigative reporters into the effectiveness of the defendants' policy of imposing secrecy on military aircraft accident safety reports.

 III.

 A.

 Plaintiffs' core request is for the witness statements furnished to the safety boards. Recognizing that a recent Supreme Court decision bars disclosure of statements by witnesses who have given them in confidence, plaintiffs claim that defendants have failed to carry their burden of proving that the defendants gave such a specific pledge to each witness who gave a statement. See United States v. Weber Aircraft Corp., 465 U.S. 792, 104 S. Ct. 1488, 79 L. Ed. 2d 814 (1984).

 There is apparent agreement between the parties that the Army is sparing in its pledges of confidentiality and that as a corollary the Army has released substantially more witness statements than have the Air Force and the Navy. Defendants further point out that Air Force and Navy regulations require that such assurances be given to all witnesses appearing before safety boards and that therefore there is a presumption of regularity that these regulations are honored by the Departments which issued them. The regulations and this presumption establish that witness statements would not be routinely discoverable.

 Plaintiffs cite incidents where witness statements are in fact disclosed. For example, such statements are produced for criminal defendants in response to Jencks Act requests. Persons who contributed causally to an accident are furnished access to the entire safety report, presumably including witness statements, albeit under protective procedures. Some witnesses do not recall being given a specific pledge of confidence. And, of course, Congress has access to the safety reports. *fn5" However, none of these incidental deviations from the course of conduct required by the regulations justifies a different conclusion with respect to release of individual witness statements. "The test under Exemption 5 is whether the documents would be 'routinely' or 'normally' disclosed upon a showing of relevance." United States v. Weber Aircraft Corp., supra, at 1493 (quoting FTC v. Grolier, Inc., 462 U.S. 19, 103 S. Ct. 2209, 2214, 76 L. Ed. 2d 387 (1983)). The regulations, the apparent practice, and the rather common knowledge of it, satisfy the defendants' burden under the doctrine of United States v. Weber Aircraft Corp., supra, and Machin v. Zuckert, 114 U.S. App. D.C. 335, 316 F.2d 336 (D.C. Cir.), cert. denied, 375 U.S. 896, 11 L. Ed. 2d 124, 84 S. Ct. 172 (1963), which establish that witness statements are not routinely discoverable. Accordingly, the witness statements sought by plaintiffs are exempt from disclosure. *fn6" To hold otherwise would be to risk stifling witness cooperation in the future, since the prospect that a court would have the final say as to whether a guarantee of confidentiality had actually been given would reduce the reliability of such pledges. See United States v. Weber, supra, at 1495 n. 23; Cooper v. Department of the Navy, supra, at 277; Brockway v. United States Air Force, 518 F.2d 1184, 1193-94 (8th Cir. 1975); see also Larson Declaration at para. 14; Breast Affidavit (June 13, 1984) at para. 10.

 B.

 Plaintiffs also request the findings, conclusions and recommendations of the safety boards, essentially on the theory that these are the final actions of the safety boards and, therefore, final agency action. Defendants respond that these findings, conclusions and recommendations are not final agency actions because safety boards do not take final agency action. According to defendants, those who appoint the safety boards and receive their reports make the decisions about what action the department takes on the basis of the findings, conclusions and recommendations of the safety boards. Defendants maintain that the give and take that characterizes the safety investigation is inherently deliberative and that the safety reports are, by definition and by necessity, predecisional. See Coastal States Gas Corp. v. Department of Energy, 199 U.S. App. D.C. 272, 617 F.2d 854, 866 (D.C. Cir. 1980). Plaintiffs' riposte is that if the safety boards' findings, conclusions and recommendations with respect to the particular accident here at issue are predecisional, then plaintiffs are entitled to "the findings of the ultimate decisionmaker, whoever that is." Plaintiffs' Memorandum on Count I at 14. Plaintiffs do not dispute that the safety investigation is deliberative.

 Considering the work of the safety boards and the administrative context in which they function, defendants have established and plaintiffs concede that the safety boards merely propose; others dispose. See McGlade Declaration at paras. 11, 21 & 40. Thus, those who act on the findings, conclusions and recommendations of the safety boards "have discretion to follow the opinions [of the safety boards] or not, based on their persuasive value rather than their character as working law. . . ." Brinton v. Department of State, 204 U.S. App. D.C. 328, 636 F.2d 600, 605 (D.C. Cir. 1980), cert. denied, 452 U.S. 905, 69 L. Ed. 2d 405, 101 S. Ct. 3030 (1981); see also Murphy v. Department of the Army, supra, at 1154 n.9; American Federation of Government Employees v. Department of the Army, 441 F. Supp. 1308, 1313 (D.D.C. 1977).

 This case is analogous to Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 44 L. Ed. 2d 57, 95 S. Ct. 1491 (1975). The plaintiff in that case sought documents generated by Regional Boards and by individual members of the Renegotation Board itself. The Court observed that the Regional Boards and individual board members could, like the safety boards in this action, merely recommend conclusions for acceptance or rejection and then held that the reports of those recommendations were properly withheld as deliberative documents. Id. at 184-91. This case differs from Renegotiation Board only because here the defendants have not identified a particular final decisionmaker; that distinction does not, however, make the safety boards' deliberations any less "predecisional." Thus, "the agency's decisionmaking mechanisms and the documents' significance within that structure," Murphy v. Tennessee Valley Authority, 571 F. Supp. 502, 505 (D.D.C. 1983), establish that, in the large, the safety board findings, conclusions and recommendations are deliberative, predecisional, and exempt from disclosure under Exemption 5. See Weber Aircraft Corp. v. United States, 688 F.2d 638, 644 (9th Cir. 1983), rev'd on other grounds, 465 U.S. 792, 104 S. Ct. 1488, 79 L. Ed. 2d 814 (1984). *fn7"

 Normally, in controversies like this, a large disclosure issue would remain with respect to particular facts stated in the reports. It is well-established that an agency resisting disclosure of an entire document or category of documents remains obligated to segregate factual portions, disclosure of which would not be barred. 5 U.S.C. § 552(b); see also Mead Data Central, Inc. v. Department of the Air Force, 184 U.S. App. D.C. 350, 566 F.2d 242, 260 (D.C. Cir. 1977). The Army and the Air Force have already segregated and disclosed facts stated in the safety board reports, both in collateral reports and supplemented excerpts. See Larson Declaration at para. 19; Ivey Declaration (June 13, 1984) at paras. 8-9; Ivey Declaration (November 14, 1984) at paras. 2-3; Crawford Declaration (November 16, 1984) at paras. 2-3.

 The Navy argues that the facts which are segregable from the safety reports are available in the collateral report that it furnishes. The Navy has also filed an externally plausible affidavit that the collateral reports contain all material facts about the several accidents. Breast Declaration (June 13, 1984) at para. 22. But that is the Navy's version of what is material and it is unclear what ...


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