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National Business Aviation Association, Inc. v. Federal Aviation Administration

February 26, 2010


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


In this "reverse" Freedom of Information Act ("FOIA")*fn1 case, National Business Aviation Association, Inc. ("Aviation Association") sues to prevent the Federal Aviation Administration ("FAA") from releasing a list of aircraft registration numbers to Pro Publica, Inc. The Aviation Association argues that the registration numbers are exempt from compelled disclosure under FOIA Exemption 4. See 5 U.S.C. § 552(b)(4). FAA and intervenor defendant Pro Publica disagree, and all parties have moved for summary judgment. The FAA's decision that the list of aircraft registration numbers must be released because the list does not contain commercial information was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See 5 U.S.C. § 706(2)(A). Thus, summary judgment will be granted in favor of the FAA.


Within the U.S. airspace system regulated by the FAA, all large commercial aircraft as well as many other general aircraft operate under Instrument Flight Rules. FAA's Mot. for Summ. J. [Dkt. # 21], Ex. 1 ("Novak Decl.") ¶ 2.*fn2 These rules require (1) the filing of a flight plan prior to any given flight that specifies the aircraft registration number, departure point, destination, flight route, and anticipated time en route; and (2) an operational Mode C transponder, an electronic device installed on the aircraft that sends signals to ground-based radar systems to enable the tracking of the aircraft by location, altitude, and airspeed. See 14 C.F.R. §§ 91.153 & .169. The information from flight plans and transponders is incorporated into the FAA's National Airspace System Status Information for the purpose of traffic flow management. Novak Decl. ¶ 2. With this data, FAA developed a Traffic Situation Display that visually depicts Instrument Flight Rule aircraft that are airborne and receiving radar services in the national airspace system. Id.

In 1992, the FAA entered into a cooperative research agreement with the Air Transport Association of America to determine the value of providing Traffic Situation Display data to the aviation industry. Id. ¶ 3. The research found that providing such information would offer economic benefits to airlines by allowing increased dispatching flexibility and more efficient management of aircraft and crews. Id. As a result of this finding, in December of 1997, the FAA created the Aircraft Situation Display to Industry ("ASDI") data feed. The ASDI feed uses Traffic Situation Display information, but filters out aircraft being used for military and other sensitive government operations. Id.

In order to subscribe to the FAA's ASDI data feed, a company must enter into a Memorandum of Agreement with the FAA. The Memorandum of Agreement sets forth the conditions and limitations by which a direct subscriber can make the ASDI feed available to users and by which the direct subscriber can market the data to secondary subscribers. Id. ¶ 6. Subscribers can obtain one of two types of ASDI data streams: (1) a near real-time display; or (2) an historical display that is delayed by at least five minutes. Id. ¶ 5.

The Aviation Association decided that it wanted the option of blocking certain aircraft from the ASDI feed. Blocking the information at its origin - the FAA's hub site - would preclude any possibility of information about the location of those blocked aircraft from ever reaching an ASDI primary or secondary subscriber. Accordingly, the Aviation Association asked the FAA if it could provide to the FAA a list of aircraft registration numbers to be filtered out of the ASDI feed; the FAA agreed. Id. ¶ 8. The Aviation Association now provides such a list, called the Block List, to the FAA on a monthly basis. Id. ¶ 9. The Block List contains only aircraft registration numbers.*fn3 Id. The FAA enters the numbers from the Block List into its system, and program software filters out those aircraft from the ASDI data feed. Id.*fn4

The FAA does not solicit Block Lists. Id. ¶ 10. When it receives a request from the private sector to block an aircraft from the ASDI feed, it directs the requester to the Aviation Association. Id. The FAA filters aircraft designated on the Block List for free and does not require or receive any showing of cause for blocking the registration number for any aircraft. Id. ¶ 11. The FAA retains only the most recently monthly Block List at any given time and does not retain the Block List from past months. Id. ¶ 12.

On December 10, 2008, Pro Publica sent a letter to the FAA requesting a list of "all requests to block the public's ability to track an aircraft or flight from ASDI and [Enhanced Traffic Management System] databases since Jan. 1, 2008."*fn5 Administrative Record ("AR") at 1. The FAA contacted the Aviation Association by telephone and advised that the FAA had made an initial determination that the Block List was releasable in response to Pro Publica's request. Decl. & Certification of AR [Dkt. # 18] ¶ 3. The FAA asked for input from the Aviation Association before making a final decision. Id. The Aviation Association objected to the proposed release on the basis of FOIA Exemption 4. AR at 2-4. Subsequently, the FAA determined that the Block List was not protected from disclosure under Exemption 4 because it was not a trade secret or commercial or financial information. The FAA explained:

The FAA has carefully reviewed the [Aviation Association's] objections to the release of the [B]lock [L]ist and has determined that the requested information does not fall within any exemption under FOIA. The requested information is simply a list of aircraft registration numbers that are blocked from the ASDI, which prevents the real-time or near real-time tracking of such aircraft. Although the FAA has agreed to block the real-time or near real-time display of registration numbers for aircraft on the [Block] [L]ist, it has never agreed to withhold any other disclosure of such registration numbers, including the display of such registration numbers in other than real-time or near real-time. . . .

To be withheld under exemption 4 of FOIA, information must be either a trade secret or commercial or financial information obtained from a person that is privileged or confidential. . . . The [Block List] is not a trade secret, nor is it commercial or financial information within the meaning of FOIA. Further, there is no evidence that the [Aviation Association], which is the submitter, has any protected interest in the list.

AR at 5.

After receiving this letter, the Aviation Association filed this suit seeking to enjoin the FAA's release of the Block List, and the FAA agreed to withhold the Block List until the Court ruled in this matter. See Agreed Order & Stipulation [Dkt. # 9]. The FOIA requester, Pro Publica, moved to intervene. The Court granted Pro Publica's motion ...

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