United States District Court, E.D. Louisiana
TONY B. JOBE
NATIONAL TRANSPORTATION SAFETY BOARD
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE.
the Court is a Motion for Summary Judgment (Rec. Doc.
28) filed by the Defendant National Transportation
Safety Board (“NTSB”) and a Cross Motion
for Summary Judgment (Rec. Doc. 48)
filed by the Plaintiff Tony Jobe. These two motions, set for
submission on October 16, 2019, are before the Court on the
briefs without oral argument.
complaint seeks relief under the Freedom of Information Act,
5 U.S.C. § 552 (“the FOIA”) and the
Administrative Procedure Act 5 U.S.C. § 706(1)
(“the APA”) and asks this Court to order the NTSB
to disclose the records it withheld that relate to the
fact-finding phase of its investigation of an EC130 B4
helicopter's (“the Helicopter”) crash on the
Island of Molokai, Hawaii, on November 10, 2011. (Rec. Doc.
48-1, p. 6, Jobe's Memorandum in Support). The crash
killed the pilot, Nathan Cline, and his four passengers.
Id. Plaintiff Jobe is an attorney who represents at
least one of the families of the victims to the helicopter
Helicopter was manufactured by Airbus Helicopters, SAS, a
French manufacturing company. Id. Airbus Helicopters
then sold the Helicopter to Nevada Helicopter Leasing, LLC,
who subsequently leased it to Helicopter Consultants of Maui,
d/b/a Blue Hawaiian Helicopters (“Blue
Hawaiian”). Id. Blue Hawaiian is a company
that conducts aerial tours of the Hawaiian Islands, including
Molokai. Id. 6-7.
its investigation, the NTSB authorized representatives from
Airbus, Blue Hawaiian, and Turbomecca (the French engine
manufacturer) to participate as “parties” to its
investigation. Id. at 7. As parties to the
investigation, the NTSB allowed Airbus, Blue Hawaiian, and
Turbomecca to inspect the crash site, take field notes,
discuss possible accident scenarios with other team members,
and perform other investigative activities. (Rec. Doc. 28-1,
p. 5-6, The NTSB's Memorandum in Support). Further,
pursuant to Annex 13,  the French Government designated accident
investigators, reconstructionists, engineers, and scientists
as parties to the NTSB's investigation. (Rec. Doc. 48-1,
p. 7, Jobe's Memorandum in Support). However, the NTSB
never appointed representatives for the victims of the crash
nor did it allow the victims' families to participate in
its investigation. Id.
the NTSB completed its investigation, Jobe submitted a
request for information under 49 C.F.R. Part 837 seeking 24
different types of documents. (Rec. Doc. 28-5, p. 17,
Jobe's 837 Release Request). After reviewing this
request, the NTSB informed Jobe that his request lacked an
affidavit that needed to contain: the information sought, its
relevance to the proceeding, and a certification stating that
the material was not available from another source. (Rec.
Doc. 28-1, p. 6, The NTSB's Memorandum in Support).
However, despite these deficiencies, the NTSB decided to
convert Jobe's Part 837 request into a FOIA request.
Id. This decision was made in part by the fact that
the NTSB had coincidently received a separate FOIA request
from a different entity a few days before Jobe's Part 837
request. Id. This separate request asked for
“any and all records” relating to the Crash.
Id. Thus, the NTSB applied the same “any and
all records” scope to both the unnamed entity's
request and to Jobe's request. Id. To complete
these two requests, the NTSB searched through over 13, 000
pages but chose to disclose only around 4, 000 of these pages
to Jobe. Id. Of the 8, 000 pages withheld
by the NTSB, 2, 349 of these pages were withheld pursuant to
Exemption 5. Id. at 7.
attempt to receive more of the documents that were withheld
from him, Jobe thereafter submitted a second FOIA request in
2016 that specifically asked for eleven different categories
of documents that only related to the NTSB's
“on-scene” phase of its investigation.
Id. at 8. These eleven categories were as follows:
1) A copy of the Attendance Roster from the Organizational
Meeting of the parties to the investigation;
2) A copy of the Outline of the Issues Utilized in the
Organization Meeting of the parties to the investigation;
3) A copy of the On-Scene Organizational Chart, including
designation of the on-site commander during the on-scene
phase of the investigation;
4) A copy of all State of Party Representatives to the NTSB
forms signed by any representative, technical advisor, or
agent of Airbus Helicopters, S.A.S. (the manufacturer of the
5) A list of all persons given badges or other authority for
access to the crash site;
6) A copy of the field notes for each work group for each day
of the on-site phase of the investigation;
7) A copy of all field notes approved by the
Investigator-in-Charge (“IIC”) for follow-up work
to remove wreckage from the crash site;
8) A copy of all IIC authorizations to remove wreckage from
Molokai between November 10, 2011 and January 1, 2012
including but not limited to November 11, 2011; November 12,
2011; November 13, 2011, November 23, 2011; November 25,
2011; and December 22, 2011;
9) A copy of Attendance Rosters for all progress meetings;
10) A copy of all of the IIC's notes for all progress
11) A copy of all of the on-scene phase of the investigation
status reports ...