NEWS MEDIA UPDATE · FIRST CIRCUIT · Freedom of Information · April 11, 2006
No additional TWA Flight 800 records will be released
April 11, 2006 · Families of some of the 230 victims killed aboard 1996’s deadly TWA Flight 800 will not receive additional documents from the Federal Bureau of Investigation, a federal appeals court has decided.
Ruling that the FBI’s search satisfied its obligation to conduct a “reasonable” search for documents related to the families’ request, the U.S. Court of Appeals in Boston (1st Cir.) affirmed a lower court in determining on March 31 that the FBI fulfilled its duty to search for records.
Following the July 17, 1996, crash, a group of the victims’ family members and other supporters teamed to independently investigate. Seeking information on behalf of the group, Graeme Sephton filed a Freedom of Information Act request with the FBI in 1998 and filing the lawsuit in 2000 after the request went unanswered. Sephton, an engineering professor at the University of Massachusetts-Amherst, became involved with the case as a “concerned citizen” and over the nearly six years of litigation, it has become his hobby, he said.
“It seemed to me that a thing like Flight 800 where so many people had been killed and where there were hundreds of witnesses, that there was a good chance in a land where there was a watchdog media that we should be able to at least get it looked at very carefully and reevaluate it, Sephton said. “It turned out to be not so easy.”
The group is considering whether to petition the entire First Circuit panel of judges to rehear the case, but Daniel J. Stotter, who represents the group, said a favorable ruling is unlikely. The two issues troubling him are that the court effectively held that an agency need not answer a FOIA complaint and that in determining the FBI conducted a “reasonable” search, it did not require the agency to affirmatively state it had “searched in all places reasonably likely” for the documents.
“It was like they were looking for forks and opened the plate drawer and said ‘no forks here’ but refused to open the fork drawer to look for them,” Stotter said of the three-judge panel. “They refused to declare that they searched in all places reasonably likely, and instead said they searched in one place really carefully.”
The Paris-bound Boeing 747 crashed about 10 minutes after its departure from New York, killing all on board. Several federal agencies investigated the crash, including the FBI and the National Transportation Safety Board, and concluded that the crash was likely caused by an explosion in one of the fuel tanks.
Sephton’s group requested forensic information from the FBI under FOIA, which located 21 pages of documents but withheld their release citing an ongoing investigation. Once the families sued, the FBI eventually gave up the 21 pages and added to it 550 pages of additional documents. The suit persisted because Sephton and the other family members and supporters had seen in the released documents mention of related documents which the FBI refused to turn over, Stotter said.
“What’s clearly missing is that the agency referenced reports of tests or studies on the location of foreign objects . . . but we couldn’t get those tests,” he said.
The FBI produced sworn statements from several employees describing the searches they had conducted and explaining their processes. The U.S. District Court in Springfield, Mass., determined these searches met the “reasonableness” requirement, and ruled for the FBI in March 2005.
Calling the district court’s opinion “cogent,” the appeals court affirmed the ruling, agreeing that the FBI had satisfied its legal duty to conduct a “reasonable” search for the records sought. The appeals court quoted the lower court’s opinion that its review of the FBI’s statements collectively describe, “in a detailed and nonconclusory fashion, the structure of the agency’s file system, the scope of the search performed, and the method by which it was conducted.”
The appeals court’s acceptance “with praise” of the lower court’s analysis makes it “very difficult to get it reconsidered” by the entire court, Stotter said. “It’s so uphill at this point, we can’t really count on any changes to the outcome of this case.”
Department of Justice spokeswoman Christina Sterling declined to comment, citing a DOJ policy prohibiting department lawyers from commenting on lawsuits.
In a related case, the U.S. District Court in Washington, D.C. recently ruled similarly on a FOIA case related to Flight 800. Accuracy in Media, a media watchdog group, sued the National Transportation Safety Board, challenging its search for investigatory flight records.
AIM had asked for 14 categories of records from NTSB, some of which were produced in full while others were in redacted form and still others were withheld under FOIA exemptions and the Privacy Act. AIM did not challenge the use of the exemptions or the Privacy Act, but instead argued that NTSB’s search was inadequate because it felt certain records “must” exist, and that the search had been conducted in “bad faith.”
The court ruled that the NTSB had conducted a reasonable search and AIM’s challenge as to the existence of additional records was “mere speculation,” referring to the group’s quest as a conspiracy theory. The court also dismissed the bad faith argument citing a lack of evidence.
(Sephton v. FBI; Accuracy in Media v. Nat’l Transportation Safety Bd., Requesters’ counsel: Daniel J. Stotter, Bromley Newton, LLP, Eugene, Ore.) — CZ