The opinion of the court was delivered by: LASKER
On December 1, 1970, a fire engulfed an Air Force F-4C aircraft, killing James F. Rabbitt, a Captain in the United States Air Force and navigator of the damaged plane. The explosion which caused the fire occurred during a refueling operation at Davis-Monthan Air Force Base in Arizona. After conducting an investigation of the accident, the Air Force compiled an Aircraft Accident Investigation Report (AAIR). Attorney for plaintiff, the Executrix of Captain Rabbitt's estate, requested pursuant to Air Force Regulations
a copy of the report to determine whether a meritorious claim for wrongful death existed. On October 21, 1971, the Director of Aerospace Safety denied the request for the AAIR but provided plaintiff with a "Summary of Circumstances" of the accident. The refusal to release the report was appealed pursuant to Air Force Regulations
to the Secretary of the Air Force, who ordered the Air Force to provide plaintiff with a portion of, but not the complete, AAIR. In compliance with the determination, the Air Force forwarded the material to plaintiff. A further appeal to release the remaining portions of the report was denied by the Air Force on February 7, 1972.
The information being withheld consists of the deliberations, recommendations, opinions and findings of investigating officers; the transcripts of statements given by witnesses to the investigative board; and portions of two medical records (Life Science Reports) of two other Air Force personnel involved in the accident.
Following the denial of her appeal, plaintiff brought this action to enjoin defendant from withholding the material in question and to direct the Air Force to produce a complete copy of the AAIR. Plaintiff asserts that it is impossible to determine if a meritorious claim for wrongful death exists without access to the entire report. She contends that disclosure is required by the Freedom of Information Act, 5 U.S.C. § 552. The Air Force justifies its actions by asserting that sections of the statute, 5 U.S.C. § 552(b)(4), (5) and (6), exempt the material sought from the scope of the disclosure requirement and even if we find the statutory exemptions inapplicable, the Government asks this Court to exercise its equitable powers to deny plaintiff relief. Both parties have moved for summary judgment and agree that there are no issues of material fact. For reasons set forth below, the Government's motion is denied and the plaintiff's motion is granted in part and deferred in part.
The Deliberations, Recommendations, Opinions and Findings of Investigating Officers.
The Freedom of Information Act, 5 U.S.C. § 552(a)(3) provides that:
"each agency, on request for identifiable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute, and procedure to be followed, shall make the records promptly available to any person."
Nine specific exceptions to the statutory requirement are established by 5 U.S.C. § 552(b)(1)-(9), but according to the explicit language of the Act, any material falling outside the ambit of the nine categories remains subject to mandatory disclosure. 5 U.S.C. § 552(c). As the Court of Appeals for the Second Circuit has stated, the policy of the Act is "to increase significantly the public availability of agency records." La Morte v. Mansfield, 438 F.2d 448, 451 (2d Cir. 1971).
The unreleased portion of the AAIR in question consists of three different types of information. According to defendant, Exemption 5 of the Act creates authority for withholding the first of these categories, the Accident Board's deliberations, recommendations, opinions and findings. That exemption excuses the Government from disclosing:
"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." 5 U.S.C. § 552(b)(5).
Courts have construed this section to require disclosure of "purely factual, investigative matters" but to insulate from discovery "materials reflecting deliberative or policy-making processes." Environmental Protection Agency v. Mink, 410 U.S. 73, 89, 93 S. Ct. 827, 837, 35 L. Ed. 2d 119 (1973); Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067 (1971); Kreindler v. Dept. of Navy of United States, 372 F. Supp. 333 (S.D.N.Y.1974); Consumers Union v. Veterans Administration, 301 F. Supp. 796 (S.D.N.Y.1969), appeal dismissed as moot, 436 F.2d 1363 (2d Cir. 1971).
The Air Force contends that it has turned over all facts which, measured by the recited test, are not exempt from disclosure. (Memorandum at p. 15.) If the factual data in the AAIR has indeed already been released in full to plaintiff, then the Government will prevail. Furthermore, any facts which remain undisclosed and are "inextricably intertwined" with the decision-making aspects of the report, are exempt from disclosure. Environmental Protection Agency v. Mink, supra.
But the Government's affidavits and memorandum of law cannot conclusively establish the extent of exempt material, for this determination is within the court's province alone. Environmental Protection Agency v. Mink, id. ; Kreindler v. Dept. of Navy, 363 F. Supp. 611, 613-614 (S.D.N.Y.1973). While Congress intended the exemption of intra-agency deliberations to ensure unfettered decision-making and reflection among the Government's policymakers, the statute does not authorize an agency, by a mere assertion, "to throw a protective blanket over all information by casting it in the form of an internal ...