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Jobe v. National Transportation Safety Board

United States District Court, E.D. Louisiana

November 18, 2019


         SECTION “A” (3)



         Before 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.

         I. BACKGROUND

         Jobe's 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 crash. Id.

         The 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.

         During 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, [1] 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.

         After 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.[2] Id. Of the 8, 000 pages withheld by the NTSB, 2, 349 of these pages were withheld pursuant to Exemption 5. Id. at 7.

         In an 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 crash helicopter);
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 meetings; and
11) A copy of all of the on-scene phase of the investigation status reports ...

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