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RABBITT v. DEPARTMENT OF THE AIR FORCE

October 9, 1974

Catherine RABBITT, as Executrix of the Estate of James F. Rabbitt, Deceased, Plaintiff,
v.
DEPARTMENT OF the AIR FORCE, Defendant



The opinion of the court was delivered by: LASKER

MEMORANDUM

 LASKER, District Judge.

 Catherine Rabbitt, widow of an Air Force Captain who was killed in an airplane accident, sues under the Freedom of Information Act (FOIA) to compel the release of the entire Aircraft Accident Investigation Report (AAIR) which concerned her husband's death. By memorandum dated November 1, 1974, we directed the Air Force to release those sections of the AAIR which contain transcripts of witnesses' statements and to produce the remainder of the withheld material for in camera inspection to determine whether the material falls within exemptions 5 and 6 of the Act. The government has submitted a copy of the AAIR to the court and moves for reconsideration of our opinion pursuant to Rule 59 of the Federal Rules of Civil Procedure. By the present motion, the Air Force for the first time invokes a claim of executive privilege for withheld portions of the report and requests that we reverse our prior determination that a federal court has no equitable jurisdiction to withhold material not within one of the Act's enumerated exceptions.

 I.

 Transcripts of Witnesses' Statements

 The Air Force urges reconsideration of the determination to release the transcripts of witnesses' statements to the Air Force Investigation Board on two interrelated grounds: an assertion of executive privilege and reliance on exemption 5 of the FOIA, 5 U.S.C. ยง 552(b)(5). Upon a review of case law decided subsequent to our memorandum and of evidence submitted by the government, we agree with the Air Force that these transcripts are exempt from disclosure.

 The initial question before us is whether a claim of executive privilege may be asserted in the context of a suit arising under the FOIA. We believe that it may. In Federal Aviation Administration v. Robertson, the Supreme Court recently stated that "Nothing in the [Freedom of Information] Act or its legislative history gives any intimation that all information in all agencies and in all circumstances is to be open to public inspection." 422 U.S. 255, 95 S. Ct. 2140, 45 L. Ed. 2d 164 (1975). The Court added:

 
"The exemptions provided by the Act . . . represent the congressional judgment as to certain kinds of 'information that the Executive Branch must have the option to keep confidential, if it so chooses.'" (citation omitted) Id.

 Exemption 5 which protects from disclosure

 
"inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency"

 is evidence of the congressional determination to preserve those "privileges which the Government enjoys under the relevant statutory and case law in the pretrial discovery context." Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168 at 184, 95 S. Ct. 1491, at 1500, 44 L. Ed. 2d 57 (1975). The FOIA Act did not repeal by implication all existing statutes which restrict public access to government records. FAA v. Robertson, supra, 422 U.S. 255, 45 L. Ed. 2d 164, 95 S. Ct. 2140. Similarly, we believe that Congress did not intend to preclude the assertion of an executive privilege in the context of an FOIA suit.

 A qualified claim of executive privilege *fn1" is recognized for documents which are integral to an appropriate exercise of the executive's decisional and policy-making functions, and once accepted, immunizes the documents from disclosure. Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966), aff'd, 128 U.S.App.D.C. 10, 384 F.2d 979, cert. denied, 389 U.S. 952, 88 S. Ct. 334, 19 L. Ed. 2d 361 (1967). The Air Force argues that the transcripts of witnesses statements before the Accident Investigation Board are cloaked with this privilege because the statements are indispensible to accident prevention in the Air Force and a guarantee of absolute confidentiality is in turn essential to securing all relevant information from witnesses.

 In support of its assertion, the government has submitted the depositions of Lt. General Donald Nunn, Inspector General of the Air Force, and Colonel Richard W. Wood, Chief of the Safety Policy and Programs Office, Directorate of Aerospace Safety. Their testimony establishes that the preparation of AAIR's is essential to the Air Force's effort to prevent airplane accidents and that the effectiveness of the reports is heavily dependent on the cooperation of everybody involved with the accident, including admissions of error or neglect by pilots, manufacturers or workmen. Without the power to promise confidentiality and use of the information solely for accident prevention purposes, these officials convincingly predict that candid and forthright interchange between witnesses and the Board will be severely inhibited, if not altogether blocked.

 A claim of executive privilege has been recognized with respect to "intra-governmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, supra, 40 F.R.D. at 324. See also Kaiser Alum & Chem. Corp. v. United States, 157 F. Supp. 939, 946, 141 Ct.Cl. 38 (1958). However, the protection of governmental policy documents is not the sole facet of the executive privilege against discovery. Brockway v. Dept. of the Air Force, 518 F.2d 1184 at 1191 (8th Cir. 1975). Indeed, prior to the passage of the FOIA, a claim of privilege was recognized under the law of pretrial discovery for precisely the same type of AAIR witnesses' ...


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