71 F.4th 1051
D.C. Cir.2023Background
- Two fatal crashes of Boeing 737 MAX aircraft (Oct 2018, Mar 2019) led the FAA to ground the type, after which Boeing made software, hardware, and training changes and the FAA recertified the MAX in Nov. 2020.
- Flyers Rights submitted a FOIA request seeking documents the FAA relied on during the recertification; the FAA identified 100+ responsive records and released some material but withheld or redacted most under FOIA Exemption 4 (confidential commercial or financial information).
- The district court granted summary judgment for the FAA; Flyers Rights appealed arguing the withheld material was not exempt.
- The FAA argued the records contained Boeing-provided proprietary technical data and proprietary means-of-compliance; some FAA-authored comments incorporated that third-party information.
- The D.C. Circuit reviewed the grant of summary judgment de novo and affirmed the FAA’s use of Exemption 4 and its segregability showing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FAA’s public promises (and Boeing’s statements) eliminated Boeing’s expectation of confidentiality | FAA’s transparency statements and Boeing’s public pledges put Boeing on notice that documents would be disclosed | FAA never made an explicit promise to release the disputed proprietary documents; agency policy forbids releasing proprietary data without permission | Generic transparency remarks and Boeing’s statements were not explicit assurances; confidentiality expectation remains |
| Whether Exemption 4 protects FAA-authored materials that incorporate or reflect third-party submissions | FAA-authored comments are agency material "not obtained from" Boeing and thus not covered by Exemption 4, especially where agency reformulated or analyzed the information | Exemption 4 covers third-party information even when incorporated into agency-authored documents; releasing such agency text would reveal Boeing’s confidential data | Exemption 4 applies where FAA comments would reveal confidential Boeing information; incorporation/reformulation does not defeat the exemption |
| Whether Boeing’s means-of-compliance are part of binding agency law (and therefore not exempt) | Boeing’s means-of-compliance operate as binding, authoritative rules and cannot be secret law | Boeing’s means here are proprietary, specific to the 737 MAX, and do not bind the public or constitute agency law | Means-of-compliance at issue are not binding law; secret-law doctrine does not require disclosure here |
| Whether the FAA failed to release reasonably segregable non-exempt information | FAA provided only conclusory explanations; it should have disclosed more, especially given public interest | Agency is entitled to presumption it disclosed segregable material; FAA provided a Vaughn index plus detailed, nonconclusory declarations and did release some redacted items | FAA met its segregability burden with detailed affidavits, Vaughn index, and targeted redactions/releases; presumption not rebutted |
Key Cases Cited
- Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019) (explains two senses of "confidential" for Exemption 4 analysis)
- Gulf & Western Indus. v. United States, 615 F.2d 527 (D.C. Cir. 1979) (agency may redact its own documents to avoid disclosing third-party confidential data it received)
- Sussman v. United States Marshals Serv., 494 F.3d 1106 (D.C. Cir. 2007) (presumption that agency complied with segregability obligation; requester must produce evidence to rebut)
- Stolt-Nielsen Transp. Grp. v. United States, 534 F.3d 728 (D.C. Cir. 2008) (conclusory affidavits insufficient to prove segregability compliance)
- Electronic Frontier Foundation v. DOJ, 739 F.3d 1 (D.C. Cir. 2014) (discussion of agencies developing secret bodies of law)
- Porup v. CIA, 997 F.3d 1224 (D.C. Cir. 2021) (nonconclusory affidavits can adequately establish that no segregable material remains)