Judge Rosemary M. Collyer of the United States District Court for the District of Columbia has ruled in favor of the Federal Aviation Administration ("FAA") in a reverse FOIA lawsuit brought by the National Business Aviation Association ("NBAA") against the FAA.
In the administrative portion of the case, the FAA, in responding to a request by Pro Publica, decided that the subject of the request,the block list of certain aircraft registration numbers, were not commercial business information and would be released to Pro Publica. The NBAA then sued the FAA, attempting to block the release and force the FAA into using FOIA exemption 4 as the reason for withholding. For those of you new to the FOIA, this is called a "Reverse-FOIA" lawsuit.
As way of background, the FAA releases information, in real time, on flights in the United States. However, due to an agreement, certain aircraft registrations numbers are not released--they are on a block list which is created and provided to the FAA on a monthly basis. Many planes on the block list are corporate jets used by high-ranking corporate officials. The requester wanted this block list.
The requester, Pro Publica, entered the case as a defendant-intervenor. After briefing on the issue, the Court issued its opinion. Specifically, the judge found that the block list was not commercial information. Specifically, she found that the harm stated by the plaintiff, that a requester could find out what corporate officials were up to by their flights and this would harm the corporations would not occur by the release of the information. This is because even if the block list information was released pursuant to FOIA, it would be so far after the flight had occurred that the harm that plaintiff describes could just not occur. Thus, FOIA exemption 4 does not protect the information.
Also important is a comment made by the Court where she states that FOIA Exemption 6 does not apply to corporations. This is in conflict with a Third Circuit Court of Appeals casethat said corporations do have privacy, albeit for FOIA Exemption 7(C).
The information will now be released unless the NBAA files an appeal of the decision within 60 days.