New York Metro Partners Thomas Tobin and Daniel Braude co-authored “5th Circuit Ruling Allows NTSB to Shield Some Party Communications,” published in a July 23, 2021 edition of Westlaw Today. This article addresses the recent decision by the U.S. Court of Appeals for the Fifth Circuit in Jobe v. NTSB which held that communications between the National Transportation Safety Board (NTSB) and parties to NTSB investigations are “intra-agency” and may therefore meet the requirements of Exemption 5 of the Freedom of Information Act (FOIA).  However, as Tom and Dan explain, this is a meaningless decision for parties to NTSB investigations for two reasons:

1. A party to an NTSB investigation has no control over which communications the NTSB may choose to release, and certainly not all party communications with the NTSB will fall within FOIA Exemption 5.
2. Regardless of any FOIA requests to the NTSB, a party’s communications with the NTSB remain completely discoverable in civil litigation once the NTSB has competed the investigation. Any party to civil litigation will be free to seek a party’s communications with the NTSB through discovery in that litigation.

Regardless of the Fifth Circuit’s decision in Jobe v. NTSB, the best practice remains the same: Parties to NTSB communications must assume that every communication to or from the NTSB will eventually become public.

Read the Westlaw Today Article.