On 17 June 2021 the Fifth Circuit held that the National Transportation Safety Board (NTSB) may continue to withhold certain communications between its investigators and parties to a completed investigation based upon the "intra-agency" exception to Freedom of Information Act (FOIA) requests. The circuit opined that publicly sharing NTSB communications with consultants would inhibit the agency's ability to receive "candid technical input from those best positioned to give it."

This is the first time that any circuit has considered this issue.

Exemption 5 of the FOIA protects privileged intra-agency documents from disclosure. The Fifth Circuit held the following:

Several circuits, including ours, read Exemption 5 to protect communications not only among an agency's employees, but also with some non-agency experts whose input the agency has solicited. This is known as the "consultant corollary."

The dissenting opinion went on to make key points that are generally applicable to the full range of NTSB investigations:

  • The purpose of NTSB investigations is to establish the facts and issue safety recommendations. This means that they will not assign liability or have adverse parties and the conclusions of investigations are not admissible in litigations that result from the incident.
  • During an NTSB investigation, the parties are under the board's direct supervision and the board closely supervises any non-agency parties, controlling the release of any non-public information. The NTSB investigator-in-charge (IIC) has the task of supervising participating parties' ability to disclose information obtained during an investigation, including within the parties' own organisations.
  • All parties must sign a statement of party representation which emphasises that their role is "to facilitate the NTSB's investigation and ultimate goal of advancing transportation safety, [and] not . . . to prepare for litigation or pursue other self-interests".
  • Parties that fail to follow instructions or that act in a "prejudicial or disruptive" manner may have their party status suspended or revoked by the IIC.
  • The NTSB is not a regulator; it functions to investigate and report its findings to other agencies. The board's purpose is to assist regulators with how best to regulate companies to ensure public safety.
  • Employees will fundamentally have a sense of loyalty and duty to their employers. As such, the NTSB must have regulations which attempt to mitigate the impact that such loyalties may have on the fact-finding objective of investigations.

The best practice for any company party to an NTSB investigation is to assume that every communication to or from the NTSB will become public after the NTSB concludes its investigation.

For further information on this topic please contact Thomas Tobin at Wilson Elser by telephone (+1 914 262 2891 or +1 212 564 2522) or email ([email protected]). The Wilson Elser website can be accessed at www.wilsonelser.com.