In a ruling with major implications for related civil aviation litigation, the Fifth Circuit U.S. Court of Appeals ruled on Thursday that the NTSB need not share all intra-agency communications from its investigations under the Freedom of Information Act (FOIA), including those from OEMs and other outside consultants that have been made a party to such investigations. The ruling does not shield all intra-agency documents, only those that are “normally privileged in the civil discovery context.”
This ruling arose from a 2019 case filed by counsel for a surviving family of the 2011 Blue Hawaiian Helicopters crash on Molokai that killed the pilot and all four passengers aboard an Airbus EC130B4. The NTSB said the probable cause of that accident was “the pilot’s failure to maintain clearance from mountainous terrain while operating in marginal weather conditions, which resulted in the impact of the horizontal stabilizer and lower forward portion of the Fenestron with the ground and/or vegetation and led to the separation of the Fenestron and the pilot’s subsequent inability to maintain control. Contributing to the accident was the pilot’s decision to operate into an area surrounded by rising terrain, low and possibly descending cloud bases, rain showers, and high wind.”
Attorney Tony Jobe had sought a large and overarching tranche of interagency documents from the investigation that the NTSB declined to disclose on the grounds that FOIA’s “Exemption 5” shields privileged “intra-agency” documents from disclosure. The Fifth Circuit reaffirmed the conclusion of other courts that this protection extends to “non-agency experts” who are invited to participate in the investigation by the NTSB under the doctrine known as the “consultant corollary.”
The lower district court had ruled that those documents were not protected as the consultants—in this case, Airbus Helicopters, engine maker Safran Helicopter Engines, and Blue Hawaiian—were not disinterested parties due to their future potential civil liability and therefore did not have “consultant” status. But the Fifth Circuit rejected that argument, citing several precedents—including Soucie v. David, which concluded that consultants “should be able to give their judgments freely without fear of publicity"—as well as federal legislation and ICAO standards.
The Fifth Circuit noted that federal law specifically prohibits the introduction of NTSB reports into evidence at related civil trials (49 CFR 831.4). The Court also noted that consultants are appointed to investigations under international agreement (ICAO Annex 13, 5.25). In all cases, parties to an investigation must sign a “statement of party representatives,” pledging that the only goal of their participation is to facilitate the NTSB investigation and the larger goal of promoting safety and not “to prepare for litigation or pursue other self-interests.” Failure to comply can result in revocation of party status.