Weber Aircraft Corporation, a Division of Walter Kidde and Company, Inc., and Mills Manufacturing Corporation v. United States

688 F.2d 638 WEBER AIRCRAFT CORPORATION, A DIVISION OF WALTER KIDDE and COMPANY, INC., and Mills Manufacturing Corporation, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 80-5744. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 27, 1981. Decided Sept. 21, 1982. Marshall Silberberg, Kirtland & Packard, Lawrence J. Galardi, Los Angeles, Cal., for plaintiffs-appellants. Volney V. Brown, Asst. U.S. Atty., Los Angeles, Cal., for defendant-appellee. Appeal from the United States District Court for the Central District of California. Before CANBY and NORRIS, Circuit Judges, and SMITH, * District Judge. NORRIS, Circuit Judge: 1 The principal issue in this case is whether witness statements given under a promise of confidentiality to an Air Force aircrash investigation board are exempt from the mandatory disclosure provisions of the Freedom of Information Act (FOIA), 5 U.S.C. § 552 . The district court held that the government was authorized to withhold the documents by Exemption 5 of the FOIA, 5 U.S.C. § 552 (b)(5), 1 and by traditional equity principles. We reverse and remand. I. BACKGROUND 2 Captain Richard Hoover…

The principal issue in this case is whether witness statements given under a promise of confidentiality to an Air Force aircrash investigation board are exempt from the mandatory disclosure provisions of the Freedom of Information Act (FOIA), 5 U.S.C. § 552 . The district court held that the government was authorized to withhold the documents by Exemption 5 of the FOIA, 5 U.S.C. § 552 (b)(5), 1 and by traditional equity principles. We reverse and remand.

I. BACKGROUND

Captain Richard Hoover sustained serious injuries when he ejected from an Air Force airplane after the engine had failed. Under Air Force regulations governing inquiries into significant air crashes, the Air Force performed two investigations. A “collateral investigation” was conducted “to preserve available evidence for use in claims, litigation, disciplinary actions, administrative proceedings, and all other purposes.” A.F. Reg. 110-14 1f 1(a) (July 18, 1977). 2 A “safety investigation,” on the other hand, was conducted by a specially appointed Mishap Investigation Board, which produced a Mishap Report, a “privileged document” intended for “the sole purpose of taking corrective action in the interest of accident…

dissenting.

I dissent.

We deal here with the lives of the persons who fly military aircraft. The Air Force asserts a privilege which it considers essential to its air safety program. The district court sustained the privilege and found on evidence that there was a substantial need for the nondisclosure policy. 1

In Machin v. Zuckert, 316 F.2d 336 (D.C. Cir.), cert. denied, 375 U.S. 896 , 84 S.Ct. 172 , 11 L.Ed.2d 124 (1963), which was decided before the enactment of the FOIA, a privilege was found to exist as to statements given to the Air Force under promises that the statements would be held confidential. Following the enactment of the FOIA, the Fifth and Eighth Circuits, in Cooper v. Department of the Navy, 558 F.2d 274 , cert. denied, 444 U.S. 926 , 100 S.Ct. 266 , 62 L.Ed.2d 183 (1977), and Brockway v. Department of the Air Force, 518 F.2d 1184 (1975), relied on Machin and, notwithstanding the FOIA, recognized the identical privilege asserted here.

The Supreme Court in Federal Open Market Committee v. Merrill, 443 U.S. 340 , 99 S.Ct. 2800 , 61 L.Ed.2d 587 (1979), did not decide the exact question presented here, nor did it decide whether the privilege announced in Machín…