Flying to the Highest Court

From the Summer 2008 issue of The News Media & The Law, page 16.

Everybody deserves a day in court when it comes to requesting federal agency documents, the U.S. Supreme Court has ruled.

The Court’s unanimous decision affirms the right of every person seeking information under the Freedom of Information Act to litigate his or her claim in court, no matter whether the same or a similar request has been previously litigated.

“This reassures requesters that just because someone else requests records, others are not bound by the decision; they have their own right to go to court and argue why the records should be released,” said Adina Rosenbaum, attorney for consumer-advocacy group Public Citizen, which represented plaintiff Brent Taylor in his appeal to the Supreme Court.

Iowa resident Taylor, an antique aircraft enthusiast and mechanic, sued the Federal Aviation Administration when it denied his request for records related to a rare F-45 aircraft that belonged to his friend and fellow antique aircraft buff Greg Herrick. Herrick, of Wyoming, was denied access to the same records and lost a lawsuit in the U.S. Court of Appeals in Denver (10th Cir.) when it upheld the FAA’s rationale that they could not be released for trade secrets reasons.

When Taylor brought his case to the Supreme Court this term, the issue was not whether the records were properly withheld, but simply whether second-comer Taylor could sue over essentially the same records denial as already litigated by first-comer Herrick.

The Court determined unequivocally that he could.

The Requesters

Herrick, a member of the Antique Aircraft Association, was looking for a way to restore his 1936 antique F-45 aircraft. In 1997, he sought plans and specifications for his plane that the manufacturer would have submitted to the FAA’s predecessor, the Civil Aeronautics Agency. The FCC denied Herrick’s request, citing its legal obligation to protect the manufacturer’s trade secrets under FOIA Exemption 4.

The FCC suggested that Herrick contact the manufacturer directly for access to the records, but Herrick learned the company had merged and been sold to a new corporation and reportedly donated all of its archives to the Smithsonian Institution. According to court records, the FAA responded to Herrick that the manufacturer would not grant permission for it to release the records. Herrick then filed a lawsuit in U.S. District Court in Cheyenne.

The denial was upheld in district court and by a unanimous panel of the Tenth Circuit in July 2002.

About a month later, Taylor filed a request with the FAA seeking the same documents. The FAA again cited the trade secrets exemption and Taylor took his turn in federal court.

The U.S. District Court in Washington, D.C. decided in 2005 that Taylor was barred from bringing his claim by the legal doctrine of claim preclusion. It prevents two parties with similar but not legally related interests from separately litigating the same claim. Taylor argued that he did not know of Herrick’s request until after the Tenth Circuit decision and that regardless, he was seeking the information for different reasons — not to repair the aircraft, but for “the public and in the interest of the preservation of antique aircraft heritage,” according to court filings.

Another hurdle for Taylor was that he later hired the same attorney that had represented Herrick, D.C.-based aviation attorney Michael Pangia. Taylor’s rationale behind his representation, he told the district court, was that it was not cost effective or timely to hire a different lawyer unfamiliar with the case. Taylor also said that he did not have an agreement to restore Herrick’s plane for him — a point the district court’s opinion focused on.

In Taylor’s appeal, the Circuit Court in D.C. found that appropriate “privity” existed between Herrick and Taylor to qualify as virtual representation — that nonparty Taylor’s interests were sufficiently represented by the Herrick’s interests in the initial litigation — and in June 2007 upheld the district court’s dismissal of the case on those grounds.

SCOTUS speaks

In the April arguments before the Supreme Court, Taylor’s attorney Rosenbaum was peppered with questions about the relationship between Herrick and Taylor. The lawyer said the parties had no formal relationship with regard to the records requests, and Herrick had not represented Taylor or Taylor’s interests when he initially sought the records more than 10 years prior. Indeed, Rosenbaum said Taylor did not know of Herrick’s request.

Justice Ruth Bader Ginsburg seemed to agree at the arguments, asking rhetorically, “How can somebody be bound by litigation when they had no notice, no opportunity to be heard?”

The National Security Archive, an independent research facility in Washington, D.C., led friend-of-the-court support for different FOIA advocacy groups that filed a brief with the Supreme Court. The Reporters Committee was a part of that group. Meredith Fuchs, general counsel for the Archive, observed that at the arguments the justices appeared dismissive of the notion that Taylor’s position could lead to unnecessary litigation.

“The members of the Court all seemed to realize that FOIA is specifically and purposefully designed to make it easy to litigate,” she said. “The FAA was trying to cut off access to the courts without showing there is a problem with people bringing the same suit again and again through their proxies.”

When it issued its decision, all nine justices agreed that if a relationship existed between Herrick and Taylor, it did not rise to “virtual representation” to prohibit Taylor from bringing his own claim for the denied airplane plans and specs. The Court determined that Taylor was not an “agent” of Herrick’s in the initial case and as a non-agent and non-party could not be bound by the decision that issued.

“The denial makes clear when talking about agency that you need one person representing others,” Rosenbaum said. “Being in touch does not make one a representative, one has to be controlling the other.”

Rosenbaum said she does not think future courts would find virtual representation exists between requesters who seek the same or similar records even if they had discussed their requests beforehand. She also said the current court system has adequate protections to prevent against duplicative lawsuits. “Litigation is expensive, if a party sees an issue has lost multiple times, they are not going to bring a lawsuit,” she said. Also, she added, “precedent applies so that means exists to bind people to decisions.”

As for Taylor, Rosenbaum said the case was making its way back down from the Supreme Court and he would have the chance to pursue his lawsuit for the records, as he initially intended.