Andre J. Theriault v. United States of America, (Two Cases)

The appellees are the widow and children of a civilian employee of the United States Air Force who was lost in an Air Force air crash. They administratively requested and were refused inspection of Air Force agency records concerning the air crash and thereupon instituted these 5 U.S.C. § 522 proceedings (Freedom of Information Act). They allege on information and belief “that they may have a valid cause of action for wrongful death against [others] but they are unable to determine the facts and circumstances surrounding the crash and the history of the aircraft prior to the crash in order to thus fully ascertain their rights and remedies” and pray for the relief provided in the Act. Appellees moved under Rule 34, Federal Rules of Civil Procedure, for an order requiring the appellant to produce certain specified documents and on September 11, 1972, the District Court granted the motion and ordered (September order) the appellant to produce the documents “for inspection and copying by” the ap-pellees.

The appellant moved for a reconsideration of the September order asserting for the first time executive privilege, and on October 20, 1972, the District Court entered its…