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National Air Traffic Controllers Association v. Federal Aviation Administration

February 12, 2007


The opinion of the court was delivered by: Emmet G. Sullivan


Plaintiff, the National Air Traffic Controllers Association, AFL-CIO ("NATCA"), brought this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking the release of documents pertaining to the New York Terminal Radar Approach Control Operational Assessment Overview ("N.Y. TRACON Overview"). In response to NATCA's FOIA request, the Federal Aviation Administration ("FAA") released many requested documents in full, but withheld some of the documents in whole or in part under FOIA Exemptions 4, 5, and 6. Pending before the Court are the parties' cross-motions for summary judgment, which contest the validity of the FAA's withholdings under Exemptions 4 and 5.

Upon consideration of the motions and supporting memorandum, the responses and replies thereto, the applicable law, and the entire record, the Court determines that the FAA's invocation of the deliberative process privilege to withhold documents is valid under Exemption 5, but that its withholdings under Exemption 4 have not been sufficiently justified. Therefore, for the reasons stated herein, both motions for summary judgment are GRANTED in part and DENIED in part.


In response to serious allegations of operational errors and under-staffing at the New York Terminal Radar Control ("TRACON") facility, the FAA sent an assessment team to New York on March 2, 2005. Decl. of James Fossey, at ¶ 5. The team was comprised mainly of air traffic personnel with experience in safety investigations and facility management, and was led by James Fossey, Director of Safety Evaluations in the Safety Division of the Air Traffic Organization at the FAA. Id. at ¶¶ 1, 5. During the on-site review, which lasted 60 days, the team reviewed operational data and practices, conducted interviews, and utilized independent experts. Id. at ¶ 6. The assessment culminated in a report issued on June 2, 2005, the N.Y. TRACON Overview, which made a number of findings and recommendations to improve the facility's operation. Id. at ¶ 7.

On August 10, 2005, NATCA submitted a FOIA request for records relating to the New York TRACON assessment. Id. at ¶ 9. The request sought information concerning, inter alia, the FAA personnel who participated in the assessment, the rationale for initiating the assessment, the public relations surrounding the Overview's publication, and the evaluation of operational errors at the facility. Id. at ¶ 10. In response, the FAA released a number of documents in 2006, but withheld or redacted certain documents under FOIA Exemptions 4, 5, and 6. Id. at ¶¶ 11-18.

NATCA filed the instant suit on January 12, 2006. The FAA moved for summary judgment, arguing that it had conducted an adequate search for records, and that its withholding and redactions were proper under the FOIA exemptions. NATCA opposed the motion and filed a cross-motion for summary judgment, arguing that the FAA's use of Exemptions 4 and 5 were invalid as a matter of law. NATCA conceded that the search was adequate and that the FAA's redactions pursuant to FOIA Exemption 6 were proper. Following that filing, on September 18, 2006, the FAA released seven documents which had previously been withheld. See Pl.'s Reply at 2 n.1. Remaining at issue are FAA's redactions in five documents pursuant to FOIA Exemption 4 and withholding and redaction of many documents pursuant to the deliberative process privilege encompassed within FOIA Exemption 5.


Summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp., 477 U.S. at 324.


FOIA requires that federal agencies release all documents requested by members of the public unless the information contained within such documents falls within one of nine exemptions. 5 U.S.C. § 522(a), (b). These statutory exemptions must be narrowly construed in favor of disclosure. Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976). The government bears the burden of justifying the withholding of any requested documents through agency affidavits, an index of withheld documents, or both. U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991); Coastal States Gas Corp. v. DOE, 617 F.2d 854, 861 (D.C. Cir. 1980). In carrying its burden, agencies may rely on declarations of government officials, which courts normally accord a presumption of expertise in FOIA as long as the declarations are sufficiently clear and detailed and submitted in good faith. Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). If the government does not satisfy its burden, the requester is entitled to summary judgment. See Friends of Blackwater v. U.S. Dep't of Interior, 391 F. Supp. 2d 115, 119-22 (D.D.C. 2005) (granting plaintiff's cross-motion for summary judgment where agency had failed to meet its burden under FOIA).

I. Exemption 4

Exemption 4 of FOIA permits an agency to withhold "trade secrets and commercial or financial information [that was] obtained from a person [and is] privileged or confidential." 5 U.S.C. ยง 552(b)(4). In Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (en banc), the test that was established for determining whether information is confidential for purposes of Exemption 4 turns on whether the information's submission to the federal government was voluntary or required. The court held that Exemption 4 protects "any financial or commercial information provided to the Government on a voluntary basis if it is of a kind that a provider would not customarily release to the public." Id. at 872. In contrast, with respect to records required to be submitted, Exemption 4 protects as confidential "'any financial or commercial information whose disclosure would be likely either (1) to impair the Government's ability to obtain necessary ...

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