Citations
- 453 F. Supp. 2d 1153
Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT CIAS SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT
MATZ, District Judge.
INTRODUCTION
“Certain historical facts are unassailable, while others are constantly subject to attack and, ultimately, remain shrouded in mystery and confusion.” Minier v. Central Intelligence Agency, 88 F.3d 796, 799 (9th Cir.1996). This irrefutable observation aptly describes the controversy that triggered this lawsuit. Barely more than ten years ago, on July 17, 1996, a United States commercial aircraft — TWA Flight 800 — exploded in mid-air off the coast of Long Island. Everyone aboard perished. What happened? How? Why? Who was responsible? Was it an accident? A terrorist attack?
Of course there was an official investigation. And of course there was an official explanation. And of course there was an ensuing torrent of critics and skeptics who challenged the bona fides of the investigation and rejected the explanation.
Equally predictable, the doubters (or at least Plaintiff, representing one group of them) have now turned to the courts to seek a ruling ordering the Government to turn over information that it has thus far withheld. For the reasons set forth below, I find that plaintiff is entitled to some, but not all, of what he seeks. The Court therefore GRANTS summary judgment to Defendants only as to the records specified below. In doing so, I do not purport to provide an answer to the above much-debated questions nor an affirmation or repudiation of the official government conclusion as to the cause of the flight’s crash.
MORI NTSB PLAINTIFF SUMMARY JUDGMENT DISCLOSURE REQUIRED?
551 GRANT NO
552 48 DENY YES
553 GRANT NO
554 12 DENY YES
555 GRANT NO
556 GRANT NO
302 DENY YES
380 66 DENY YES
382 34 76 DENY YES
382 35 77 DENY YES
??? 36 78 DENY YES
NSA Computer Program GRANT NO
I. Background
A. Factual Summary
1. The Crash Investigation and Ensuing FOIA Litigation
The genesis of this suit lies in the tragic crash of Trans World Airline (“TWA”) Flight 800 (“Flight 800”). On July 17, 1996, Flight 800 departed from John F. Kennedy International Airport in New York City, en route to Charles de Gaulle International Airport in Paris, France. The aircraft crashed into the Atlantic Ocean twelve minutes after departure. There were no survivors of the accident and the aircraft, a Boeing 747-131, was destroyed. Some eyewitnesses recounted having seen “a streak of light, resembling a flare, moving upward in the sky to the point where a large fireball appeared .... [and] split into two fireballs as it descended toward the water.” Moye Decl., Ex. IV, at p. 278.
The National Transportation Safety Board (“NTSB”) is an independent federal agency charged with investigating civil aviation accidents in the United States. 49 C.F.R. §§ 800.3, 831.2. The NTSB conducts investigations in order to determine the circumstances relating to and the probable causes of accidents and to make safety recommendations that are intended “to prevent similar accidents or incidents in the future.” Id. § 831.4. The NTSB has the authority to designate parties to assist the agency in conducting an accident investigation. Id. § 831.11 (“Parties shall be limited to those persons, government agencies, companies, and associations whose employees, functions, activities, or products were involved in the accident or incident and who can provide suitable qualified technical personnel actively to assist in the investigation.”). Following an accident investigation, the NTSB issues its probable cause determination and safety recommendations in an official report. Id. § 831.4.
Per its mandate, the NTSB conducted an investigation of Flight 800. The NTSB appointed several entities as party participants to assist in the investigation, including the Boeing Commercial Airplane Group (“Boeing CAG”) and the Air Line Pilots Association (“ALPA”). Boeing also voluntarily provided information to the NTSB and Central Intelligence Agency (“CIA”) concerning flight characteristics and performance of Boeing 747s. Third Buroker Decl, at ¶ 10. The investigation of Flight 800 eventually produced a public docket containing approximately 2,750 documents. Public hearings were held in December 1997 and in August 2000. On August 23, 2000, the NTSB adopted the “Aircraft Accident Report: In-flight Breakup Over The Atlantic Ocean” (the “Accident Report”) as the official NTSB accident report on Flight 800. See Moye Decl., Ex. IV. The parties do not dispute that the Accident Report constitutes the NTSB’s final conclusion as to the probable cause of the Flight 800 accident, although Plaintiff claims that the CIA animation, see infra, also constitutes a final conclusion.
The NTSB concluded that during the initial break-up of the aircraft, the forward fuselage detached from the remainder of the aircraft. The remainder briefly continued to climb in “crippled flight.” See Moye Decl., Ex. IV, at pp. 288, 290. Plaintiff Lahr calls this conclusion, of which he is skeptical, the “zoom-climb” conclusion.
Dennis Crider, a National Resource Specialist for Vehicle Simulation in the Vehicle Performance Division of the NTSB, was assigned to the investigation of Flight 800. Crider was tasked with determining the trajectories of parts of the aircraft and the flight path of the main wreckage following the loss of the forward fuselage. Crider Decl., at ¶¶ 3-5. Crider developed four reports in the course of his involvement with the Flight 800 investigation: the Trajectory Study, the Main Wreckage Flight Path Study (“Flight Path Study”) and the Errata to the Main Wreckage Flight Path Study, Addendum I to the Flight Path Study (“Addendum I”), and Addendum II to the Flight Path Study (“Addendum II”). These reports form a part of the extensive Flight 800 public docket and were considered by the NTSB panel (the “Safety Board”) prior to its issuance of the Accident Report.
On October 8, 2003, Plaintiff H. Ray Lahr filed over one hundred Freedom of Information Act (“FOIA”) requests with the NTSB and CIA, many of which have since been withdrawn. Lahr basically seeks the records upon which the four Crider reports, two video animations shown at the 1997 public hearing, and one CIA animation broadcast on the Cable News Network (“CNN”) are based. The requests are divided into eleven distinct categories (many of the requests fall into more than one category):
A. All records of formulas used by the NTSB in its computations of the zoom-climb conclusions;
B. All records of the weight and balance data used by the NTSB in its computations of the zoom-climb conclusions;
C. All records of the formulas and data entered into the computer simulations regarding the NTSB’s zoom-climb conclusions;
D. All records reflecting whether or not the NTSB conducted the computer simulations in-house, and, if not, all records of when, where, and by whom the computer simulations were performed;
E. The computer simulation programs used by the NTSB and CIA;
F. The printout of the computer simulations used by the NTSB;
G. All records of the timing sequence of the zoom-climb, including, but not limited to radar, radio transmissions, and the flight data recorder (“FDR”);
H. All records of the correlation of the zoom-climb calculations with the actual radar plot;
I. All records of the information provided by Boeing to the NTSB used by the NTSB to calculate these zoom-climb conclusions;
J. All records of the process by which the NTSB arrived at its zoom-climb conclusions;
K. All records generated or received by the NTSB used in its computations of its zoom-climb conclusions.
Moye Decl., Ex. 1-1, at p. 49.
The NTSB and CIA performed searches for these records and located a number of responsive records in the public docket and in responses to prior FOIA requests made by Lahr. They released certain records to Lahr, some of which were redacted. Lahr challenges the adequacy of the agencies’ searches and the agencies’ decisions to withhold, in full or in part, various records. The agencies assert that their searches were adequate, that they have turned over all responsive records to Lahr, and that they have properly withheld records, in full or in part, under provisions of FOIA that create exemptions from the statute’s fundamental mandate of disclosure.
2. Plaintiffs Allegations of Government Impropriety
“[A]s a general rule, when documents are within FOIA’s disclosure provisions, citizens should not be required to explain why they seek the information.” Nat’l Archives & Records Admin, v. Favish, 541 U.S. 157, 172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004). Here, however, the Government’s basis for withholding many of the contested records is Exemption 7(C) under FOIA, which permits the government to withhold information compiled for law enforcement purposes that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” In such circumstances, “to balance the competing interests in privacy and disclosure [that courts must weigh in applying Exemption 7(C) ], ... the usual rule that the citizen need not offer a reason for requesting the information must be inapplicable.” Id. Instead, the requester must “establish a sufficient reason for the disclosure.” Id. “[Where] the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.” Id. at 174.
Here, Plaintiff seeks to prove that Defendants participated in a massive coverup of the true cause of the crash of Flight 800, which he believes was a missile strike from an errant missile launched by the United States military. The following summary of the evidence Plaintiff presented to meet the threshold requirement described in Favish is based on Plaintiffs “Statement of Genuine Issues in Opposition to [the Second] CIA Motion for Partial Summary Judgment,” especially the portion beginning at page 13. Defendants did not file any response to that statement, so on this motion, at least, Plaintiffs assertions have not been repudiated. Nor did Defendants file objections to that evidence. The ensuing summary characterizes the evidence in the light most favorable to Plaintiff, but does not reflect or constitute any finding by the Court.
According to Plaintiff, then, the government withheld evidence from the Flight 800 probe. The government altered evidence during the investigation. Evidence was removed from the reconstruction hangar. The government misrepresented radar data, which does not correspond to the “zoom-climb” conclusion. Radar data and flight recorder data are missing. It appears that underwater videotapes of the debris from the plane have been altered. The government concealed the existence of a missile debris field and debris recovery locations. At its first public hearing, the NTSB did not permit eyewitness testimony. Many eyewitnesses vehemently disagree with the conclusions the CIA expressed in the video animation. The CIA falsely reported that only twenty-one eyewitnesses saw anything prior to the beginning of the fuselage’s descent into the water. The FBI took over much of the investigation from the NTSB, which should have been in charge, and the CIA never shared its data and calculations of the trajectory study with others for peer review, which would have been appropriate.
Plaintiff also submits evidence that the government’s conclusion that there was a center-wing fuel tank explosion and the government’s “zoom-climb” theory were physically impossible under the circumstances. For example, evidence suggested there was no spark in the center-wing fuel tank. Once an explosion occurred, engine thrust would have been cut off with the loss of the nose of the plane. Furthermore, the aviation fuel used in Flight 800 is incapable of an internal fire or explosion. The zoom-climb theory is impossible because at least one wing separated early in the flash sequence. Additionally, a steeper climb would likely result in a reduction in ground speed, which contradicts radar evidence. In fact, Plaintiffs evidence suggests the “zoom-climb” theory is aerodynamically impossible.
Finally, Plaintiff also claims that there were “military assets” conducting classified maneuvers in the area at the time of the crash, and several vessels in the area remain unaccounted for.
For the purpose of determining whether Exemption 7(C) (and other FOIA provisions) are applicable, and only for that purpose, the Court finds that, taken together, this evidence is sufficient to permit Plaintiff to proceed based on his claim that the government acted improperly in its investigation of Flight 800, or at least performed in a grossly negligent fashion. Accordingly, the public interest in ferreting out the truth would be compelling indeed.
B. Procedural Summary
On November 6, 2003, Plaintiff H. Ray Lahr filed suit against the NTSB. Thereafter he added as defendants the CIA and National Security Agency (“NSA”) (together, “Defendants”)- Lahr is a former Navy pilot and retired United Airlines Captain who has served as ALPA’s Southern California safety representative for over fifteen years. Defendants are government agencies subject to FOIA, 5 U.S.C.A. § 552. On December 17, 2003, Lahr filed a First Amended Complaint, and on February 6, 2006, Lahr filed a Second Amended Complaint (“SAC”). The SAC seeks proper identification by the Defendants of records responsive to requests that Lahr has made under FOIA, preliminary and final injunctions prohibiting Defendants from withholding the records at issue, and a mandatory injunction requiring Defendants to make certain of their computer and software programs available to Plaintiff for inspection. SAC, at pp. 6-7.
On August 16, 2005, the CIA moved for partial summary judgment on some redacted or withheld records found in CIA files (“First CIA Motion”). On October 18, 2005, the Court took that motion under submission without oral argument, anticipating that the motion now pending before the Court — namely, the CIA’s May 1, 2006 motion for partial summary judgment on the remaining redacted or withheld records found in CIA files (“Second CIA Motion”) — would be filed. According to the CIA, its second motion covers all CIA records not encompassed'by its first motion, but without any overlap; in other words, every disputed withholding of a CIA record is challenged in one or the other of these motions. The Second CIÁ Motion involves twelve such records, although Plaintiff does not oppose the exemptions claimed in three of them.
On June 8, 2004, before the CIA filed its two partial summary judgment motions, the NTSB moved for partial summary judgment on all redacted and withheld records originally found in its agency files. On September 27, 2004, the Court heard oral argument, took that motion under submission and ordered those records be provided in unredacted form for in camera review.
Thus, the Court has three summary judgment motions to decide. Its resolution of these motions has been seriously impeded by the multiple and confusing document identification systems that the parties utilized. As the Court has been forced to note previously, the parties identified disputed documents with different, non-overlapping numbering systems, and they could not agree which documents fell within more than one reference, even after being instructed to do so by the Court.
On July 10, 2006, the Court held a hearing concerning the Second CIA Motion. As a result of glaring deficiencies in the government’s Vaughn index, the Court thereafter ordered Defendants to submit for in camera review unredacted copies of several documents at issue in this motion. The Court- has now reviewed those materials.
II. Discussion
A. Legal Standards
1. Motion for Summary Judgment
FOIA actions usually are resolved via summary judgment motion practice. See Miscavige v. Internal Revenue Serv., 2 F.3d 366, 369 (11th Cir.1993). Federal Rule of Civil Procedure 56(c) provides for summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The moving party bears the initial burden of demonstrating the absence of a “genuine issue of material fact for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if it could affect the outcome of the suit under the governing substantive law. Id. at 248, 106 S.Ct. 2505. The burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
“When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontrovert-ed at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co., Inc. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir.2000) (citations omitted). In contrast, when the non-moving party bears the burden of proving the claim or defense, the moving party can meet its burden by pointing out the absence of evidence from the non-moving party; the moving party need not disprove the other party’s case. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Thus, “[sjummary judgment for a defendant is appropriate when the plaintiff ‘fails to make a showing sufficient to establish the existence of an element essential to [his] case, and on which [he] will bear the burden of proof at trial.’ ” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805-06, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (citing Celotex, 477 U.S. at 322, 106 S.Ct. 2548).
When the moving party meets its burden, the “adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Summary judgment will be entered against the non-moving party if that party does not present such specific facts. Id. Only admissible evidence may be considered in deciding a motion for summary judgment. Id.; Beyene v. Coleman Sec. Serv., Inc., 854 F.2d 1179, 1181 (9th Cir.1988).
“[I]n ruling on a motion for summary judgment, the nonmoving party’s evidence ‘is to be believed, and all justifiable inferences are to be drawn in [that party’s] favor.’ ” Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505). But the non-moving party must come forward with more than “the mere existence of a scintilla of evidence.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Thus, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted).
Simply because the facts are undisputed does not make summary judgment appropriate. Instead, where divergent ultimate inferences may reasonably be drawn from the undisputed facts, summary judgment is improper. Braxton-Secret v. A.H. Robins Co., 769 F.2d 528, 531 (9th Cir.1985).
2. The Freedom of Information Act (FOIA)
Under FOIA, federal agencies are required to make a broad range of information available to the public, including information regarding the agency’s organization, general methodology, rules of procedure, substantive rules, general policy, final opinions, statements of policy and interpretations it adopted. 5 U.S.C.A. § 552(a). The purpose of FOIA is to protect “the citizens’ right to be informed about ‘what their government is up to.’” United States Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) [hereinafter Reporters Comm.]. In deference to the “philosophy of full agency disclosure” that animates FOIA, “[t]he Supreme Court has interpreted the disclosure provisions of FOIA broadly....” Lion Raisins Inc. v. United States Dep’t of Agriculture, 354 F.3d 1072, 1079 (9th Cir.2004) (quotation omitted); see also Dep’t of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (“disclosure, not secrecy, is the dominant objective of’ FOIA).
This Court has jurisdiction “to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C.A. § 552(a)(4)(B); Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). The district court reviews de novo an agency’s denial of requests made pursuant to FOIA. 5 U.S.C.A. § 552(a)(4)(B); Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1384 (D.C.Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980).
A requester may challenge an agency’s response to a FOIA request in two ways: first, the requester may claim that the agency failed to make a sufficient or reasonable search of its records in response to a FOIA request, see, e.g., Zemansky v. United States Envtl. Prot. Agency, 767 F.2d 569, 571 (9th Cir.1985) (requester claiming that agency search was “deficient”), and second, the requester may claim that the agency has claimed an exemption that does not apply to the records the agency found but withheld. See, e.g., Favish, 541 U.S. at 160-64, 124 S.Ct. 1570.
a. Adequacy of the Agency’s Search
The agency carries the burden of demonstrating that “it has conducted a search reasonably calculated to uncover all relevant documents.” Zemansky, 767 F.2d at 571 (quotation omitted) (finding agency search adequate based on “relatively detailed” affidavits). The standard is not whether there is a possibility that undisclosed documents, responsive to a particular FOIA request, exist somewhere in the agency’s records, “but rather whether the search for those documents was adequate. The adequacy of the search, in turn, is judged by a standard of reasonableness and depends ... upon the facts of each case.” Id. (quotation omitted; emphasis in original). The agency may use affidavits to establish that it has conducted a sufficient search of its records, but “[a]f-fidavits describing agency search procedures are sufficient for purposes of summary judgment only if they are relatively detailed in their description of the files searched and the search procedures, and if they are nonconclusory and not impugned by evidence of bad faith.” Id. at 573 (quotation omitted; alteration in original); see also Meeropol v. Meese, 790 F.2d 942, 952 (D.C.Cir.1986) (noting that agency affidavits are entitled to a “presumption of good faith”). If the court determines that “the agency has sustained its burden of demonstrating that it conducted a reasonable search ... the burden [then] shifts to the plaintiff [/requester] to make a showing of agency bad faith sufficient to impugn the agency’s affidavits.” Katzman v. Cent. Intelligence Agency, 903 F.Supp. 434, 437 (E.D.N.Y.1995) (emphasis added) (noting that in a FOIA-related motion for summary judgment the “facts are viewed in a light most favorable to the requester of information”). On this motion — the Second CIA Motion — Plaintiff does not contend that the Defendants’ searches were inadequate.
b. Claims of Exemption (Generally)
An agency’s withholding of documents must fall into one of nine exemptions. 5 U.S.C.A. §§ 552(b)(l)-(9), 552(d). In accordance with the broad disclosure provisions of FOIA, the enumerated exemptions are narrowly construed. See, e.g., John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989), reh’g denied, 493 U.S. 1064, 110 S.Ct. 884, 107 L.Ed.2d 966 (1990). An agency must provide a requester with “[a]ny reasonably segregable portion of a record ... after deletion of the portions which are exempt under [section 552(b) ]....” 5 U.S.C.A. § 552(b).
The agency seeking to withhold documents carries the burden of proving that a claimed exemption is applicable to the record or portion of the record that has been withheld. 5 U.S.C.A. § 552(a)(4)(B); Lion Raisins, 354 F.3d at 1079. In order to establish that it has properly withheld records, the agency may submit, or may be required to submit, a Vaughn index. Wiener v. Fed. Bureau of Investigation, 943 F.2d 972, 977, reh’g denied, 951 F.2d 1073 (9th Cir.1991), cert. denied, 505 U.S. 1212, 112 S.Ct. 3013, 120 L.Ed.2d 886 (1992); see Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974) (“[C]ourts will simply no longer accept conclusory and generalized allegations of exemptions ... but will require a relatively detailed analysis in manageable segments.”). A Vaughn index should “identify! ] each document withheld, the statutory exemption claimed, and a particularized explanation of how disclosure of the particular document would damage the interest protected by the claimed exemption.” Wiener, 943 F.2d at 977. If the Vaughn index is not sufficiently detailed, the court may order an in camera review of the withheld documents. 5 U.S.C.A. § 552(a)(4)(B); Lion Raisins, 354 F.3d at 1079 (citation omitted).
The CIA has withheld documents at issue in this motion under Exemptions 2, 3, 4, 5, 6 and 7(C). The Court first will review the principles underlying each of these exemptions and afterward will apply those principles to the particular records at issue.
i. Exemption 2: Internal Personnel Rules and Practices
This exemption provides that the disclosure requirements of FOIA do not apply to matters “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C.A. § 552(b)(2). Although, in an attenuated sense, virtually everything undertaken by a federal agency could be said to be related to the “internal personnel ... practices of ... [that] agency,” not everything is “solely” related, and the “potentially all-encompassing sweep of a broad exemption ... undercuts the vitality of any such approach.” Maricopa Audubon Soc’y v. United States Forest Serv., 108 F.3d 1082, 1085 (9th Cir.1997) (quoting Vaughn, 523 F.2d at 1150 (Leventhal, J., concurring)). For this reason, this exemption is construed narrowly. See Rose, 425 U.S. at 367-68, 96 S.Ct. 1592.
The Ninth Circuit has recognized that “law enforcement materials, the disclosure of which may risk circumvention of agency regulation, are exempt under Exemption 2.” Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653, 656 (9th Cir.1980) (citation omitted). The term “law enforcement materials” is not limited to enforcement of criminal laws. See, e.g., Dirksen v. Dep’t of Health & Human Servs., 803 F.2d 1456, 1459 (9th Cir.1986) (concerning processing guidelines for Medicare program); Ginsburg, Feldman & Bress v. Fed. Energy Admin., 591 F.2d 717, 723-31, aff'd en banc, 591 F.2d 752 (D.C.Cir.1978) (equally divided court), cert. denied, 441 U.S. 906, 99 S.Ct. 1994, 60 L.Ed.2d 374 (1979) (concerning audit guidelines).
In contrast to “administrative materials,” which “involve the definition of the violation and procedures required to prosecute the offense,” law enforcement materials involve “methods” of enforcing the laws, however interpreted. Id. at 657.
When an agency believes materials sought by a FOIA request are exempt as law enforcement materials, it must submit a detailed affidavit describing how disclosure would risk circumvention of agency regulation. Hardy, 631 F.2d at 657. If this explanation is reasonable, the court should find the materials exempt from disclosure unless an in camera examination reveals that they contain “secret law” — i.e., a non-public interpretation or policy that governs the agency’s actual practices — or that the agency has not fairly described their contents. Id.
ii. Exemption 3: Materials Specifically Exempted from Disclosure by Other Statutes
This exemption provides that the disclosure requirements of FOIA do not apply to matters “specifically exempted from disclosure by statute ... provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C.A. § 552(b)(3). The exemption applies only if the proffered statute falls within the scope of Exemption 3 and if the requested information falls within the scope of the statute. Minier, 88 F.3d at 801.
Here, Defendants have relied on two statutes to justify withholding materials under Exemption 3. The first is the National Security Agency Act of 1959, Pub.L. No. 86-36, § 6(a), 73 Stat. 63 (1959), codified at 50 U.S.C.A. § 402. Section 6(a) states:
Except as provided in subsection (b) of this section, nothing in this Act or any other law ... shall be construed to require the disclosure of the organization or any function of the National Security Agency, of any information with respect to the activities thereof or of the names, titles, salaries, or number of the persons employed by such agency.
(emphasis added). The protection afforded by section 6(a) is “by its very terms absolute.” Linder v. Nat’l Sec. Agency, 94 F.3d 693, 698 (D.C.Cir.1996). Material within the purview of section 6(a) may be withheld under Exemption 3. Hayden, 608 F.2d at 1389.
The second statute Defendants invoke to support their Exemption 3 withholding is 50 United States Code Annotated section 403g, which states:
In the interests of the security of foreign intelligence activities of the United States and in order further to implement section 102A(I) of the National Security Act of 1947 that the Director of National Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure, the [Central Intelligence] Agency shall be exempted from the provisions of ... any ... law which require[s] the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.
Section 102A(I) of the National Security Act of 1947, 50 United States Code Annotated section 403 — l(i)(l), requires the Director of National Intelligence to protect intelligence sources and methods from unauthorized disclosure. Sections 401-l(i)(2) and (3) provide guidance on how to do so. Material within the purview of sections 401-1 and 403g may be withheld under Exemption 3. Minier, 88 F.3d at 801 (citing section 403g and predecessor to 401-1).
Hi. Exemption U: Trade Secrets and Confidential Commercial or Financial Information
This exemption applies to information that qualifies as “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C.A. § 552(b)(4). The terms “commercial” and “financial” retain their ordinary meaning and the term “person” includes “an individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U.S.C.A. § 551(2) (person); Pub. Citizen Health Research Group v. Food & Drug Admin., 704 F.2d 1280, 1290 (D.C.Cir.1983) (commercial and financial). The meaning of the term “confidential” is not so easily determined, however. FOIA contains no definition and the once widely-applied test for “confidentiality” has recently been modified by the Court of Appeals for the District of Columbia, the court which initially created that test.
The original test was established by National Parks & Conservation Ass’n v. Morton, 498 F.2d 765 (D.C.Cir.1974). In National Parks, the appellant sought access to records of the Department of the Interior consisting of audits, annual financial statements and other financial information of companies operating concessions in national parks. Nat’l Parks, 498 F.2d at 770. The district court determined that the “information [sought] was of the kind ‘that would not generally be made available for public perusal’ ” and declined to order disclosure. Nat’l Parks & Conservation Ass’n v. Morton, 351 F.Supp. 404, 407 (D.D.C.1972) (citation omitted). The Court of Appeals reversed. Nat’l Parks, 498 F.2d at 771.
In interpreting the scope of the requirement that agency-withheld commercial or financial material be “confidential,” the National Parks court was guided by the congressional understanding that the Exemption “is necessary to protect the confidentiality of information which is obtained by the Government through questionnaires or other inquiries, but which would customarily not be released to the public by the person from whom it was obtained.” Nat’l Parks, 498 F.2d at 766 (citing S.Rep. No. 813, 89th Cong., 1st Sess. 9 (1965)) (emphasis added). In light of this explanation, the Court of Appeals announced that,
[for the purposes of Exemption 4,] commercial or financial matter is “confidential” ... if disclosure of the information is likely to have either of the following effects: (1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.
Id. at 770 (emphasis added).
In light of the National Parks test, the Court of Appeals found that the district court had failed “inquire into the possibility that disclosure [would] harm legitimate private or governmental interests in secrecy” and remanded the matter to the district court “for the purpose of determining whether public disclosure of the information in question pose[d] the likelihood of substantial harm to the competitive positions of the parties from whom it ha[d] been obtained.” Nat’l Parks, 498 F.2d at 770-71 (also noting that “[s]ince the con-cessioners [were] required to provide [the requested] financial information to the government, there is presumably no danger that public disclosure will impair the ability of the Government to obtain this information in the future” (emphasis added)).
Nearly two decades later, the Court of Appeals for the District of Columbia revisited the National Parks test. See Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871 (D.C.Cir.1992) (en banc), cert. denied, 507 U.S. 984, 113 S.Ct. 1579, 123 L.Ed.2d 147 (1993) (hereinafter Critical Mass). In Critical Mass, the Critical Mass Energy Project (“CMEP”), a public interest organization, sought access to safety reports prepared by the Institute of Nuclear Power Operations (“INPO”), which INPO voluntarily submitted to the Nuclear Regulatory Commission (“NRC”) on the condition that the NRC maintain the confidentiality of those records. Critical Mass, 975 F.2d at 874. Citing Exemption 4, the NRC claimed that the INPO reports contained confidential commercial information. Id. The panel decision granted summary judgment in favor of the NRC on the grounds that the reports were both commercial and confidential and therefore properly withheld pursuant to Exemption 4. Id. The Court of Appeals ordered that the ease be heard en banc, in part “to reconsider the definition of ‘confidential’ set forth in National Parks ... for the purposes of applying ... [Exemption 4].” Id. at 875 (quotation omitted).
The en banc panel refined the National Parks test insofar as that test applied to information that had been voluntarily submitted to an agency, as was the information Boeing provided to the NTSB. Id. at 877-79. The court explained that “when information is obtained under duress [as it had been in National Parks ], the Government’s interest is in ensuring its continued reliability; [but] when that information is volunteered, the Government’s interest is in ensuring its continued availability.” Id. at 878 (emphasis added). The court noted that the distinction between voluntary and compelled information was equally salient when considering the second (“competitive injury”) prong of the National Parks test. It reasoned that, where the production of information is compelled,
there is a presumption that the Government’s interest is not threatened by disclosure ... and as the harm to the private interest (commercial disadvantage) is the only factor weighing against FOIA’s presumption of disclosure, that interest must be significant. Where, however, the information is provided to the Government voluntarily, the presumption is that the [Government’s] interest will be threatened by disclosure as the persons whose confidences have been betrayed will, in all likelihood, refuse further cooperation. In those cases, the private interest served by Exemption k is the protection of information that, for whatever reason, “would customarily not be released to the public by the person from whom it was obtained .... ”
Id. at 878-79 (quotation omitted and emphasis added).
The en banc panel went on to conclude, Accordingly, while we reaffirm the National Parks test for determining the confidentiality of information submitted under compulsion, we conclude that financial or commercial information provided to the Government on a voluntary basis is “confidential” for the purpose of Exemption 4 if it is of a kind that would customarily not be released to the public by the person from whom it was obtained.
In a strong dissent, then-judge Ruth Bader Ginsberg argued that the court was misguided in altering the standard of “confidentiality” for “all cases in which commercial or financial information is given to the Government voluntarily.” Id. at 882 (Ginsberg, J., dissenting). The dissent saw this alteration as “slackening” the objectivity of the National Parks test and explained that, “[t]o the extent that the [majority] allows [voluntary] providers to render categories of information confidential merely by withholding them from the public long enough to show a custom, the revised test is fairly typed ‘subjective’ and substantially departs from National Parks.” Id. at 883. Further, the dissent argued, the “slackened” test for voluntary submissions was “difficult to reconcile” with the statutory mandate of FOIA to construe exemptions narrowly, because under the refined standard parties opposing disclosure are not required “to show in each case ‘how disclosure will significantly harm some relevant or private governmental interest.’ ” Id. at 884-85 (citation omitted).
The Ninth Circuit and the majority of the other circuits adopted the initial National Parks test for “confidentiality,” see, e.g., Pac. Architects & Eng’rs, Inc. v. Dep’t of State, 906 F.2d 1345, 1347 (9th Cir.1990), but the Ninth Circuit has not addressed the Critical Mass modification of that test for voluntarily-submitted information. See, e.g., Frazee v. United States Forest Serv., 97 F.3d 367, 372 (9th Cir.1996) (noting that because the information at issue was not voluntarily submitted to the agency, the court need not address the distinction “between voluntary and mandatory information” established in Critical Mass). However, in Dow Jones Co., Inc. v. Federal Energy Regulatory Commission, 219 F.R.D. 167 (C.D.Cal.2003) (Snyder, J.), the district court considered the Critical Mass test and rejected it in favor of adherence to the more stringent National Parks test. Id. at 177.
In Doiv Jones, the plaintiffs sought disclosure “of [an appendix] relating to an investigation [and interviews] conducted by [the] Federal Energy Regulatory Commission (FERC) of energy production and sales at two California power plants.” Id. at 169. The defendant claimed that disclosure of the appendix would jeopardize the government’s ability to obtain like information in the future. Id. at 178. The district court, in large part relying on the Critical Mass dissent, noted that “the holding [in Critical Mass] is not consistent with Ninth Circuit jurisprudence, nor with the purposes of Congress in enacting FOIA, which mandates the courts to favor disclosure to serve the public interest.” Id. The Court observed that an agreement for or a claim of confidentiality was insufficient to avoid disclosure and that if such a standard were adopted “any agency could, theoretically, simply hand out promises of confidentiality to individuals who gave information in order to avoid judicial review.” Id. at 178. For these reasons, the Court held that Exemption 4 did not. apply because the defendant had failed to establish that disclosure would result in a harm to the government or to a private interest. Id. at 179.
This Court, too, finds that the National Parks test is the appropriate test to be applied in circumstances, such as those here, where information has been voluntarily given to an agency. However, the “government need not show that releasing the documents would cause ‘actual competitive harm.’ ' Rather, the government need only show that there is (1) actual competition in the relevant market, and (2) a likelihood of substantial competitive injury if the information were released.” Lion Raisins, 354 F.3d at 1079 (citing G.C. Micro Corp., 33 F.3d at 1113) (finding likelihood of substantial competitive harm because the withheld documents contained commercial information provided by the requester’s competitors and disclosure would allow the requester to underbid its competitors).
In the context of Exemption 4, competitive harm analysis “is ... limited to harm flowing from the affirmative use of proprietary information by competitors. Competitive harm should not be taken to mean simply any injury to competitive position .... ” Pub. Citizen Health Research Group, 704 F.2d at 1291-92 & n. 30 (quotation omitted; emphasis in original) (affirming the district court’s conclusion that the FDA could withhold certain clinical test information that manufacturers of intrao-cular lenses had been required to submit to the agency, based on a, finding that disclosure of the commercial information would cause “substantial competitive injury”). Although “the court need not conduct a sophisticated economic analysis of the likely effects of disclosure^] ... [c]on-clusory and generalized allegations of substantial competitive harm ... are unacceptable and cannot support an agency’s decision to withhold requested documents.” Id. at 1291 (internal citation omitted).
Plaintiff argues that for any record falling under Exemption 4, the Court must apply a balancing test between the public interest in disclosure and the private interests protected by the exemption. However, Plaintiff cites no applicable precedent for this proposition. The only test the Court may apply is that found in National Parks. See Pub. Citizen Health Research Group v. Food & Drug Admin., 185 F.3d 898, 904 (D.C.Cir.1999) (National Parks test is the balancing test).
iv. Exemption 5: Privileged Inter-and Intra-Agency Communication
This exemption provides that the FOIA disclosure requirements do not apply to information that qualifies as “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C.A. § 552(b)(5). The privilege that Defendants rely on here is commonly referred to as the “deliberative process privilege,” which is commonly understood to “covert ] ‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated...Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (quoting Nat’l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975)) (internal quotation marks omitted in original).
In order “[t]o fall within the deliberative process privilege, a document must be ... [1] ‘predecisional’ and [2] ‘deliberative.’ ” Carter v. United States Dep’t of Commerce, 307 F.3d 1084, 1089-91 (9th Cir.2002) (citation omitted) (holding that statistically adjusted census data which had not been released as official 2000 Census numbers was neither predecisional nor deliberative). “A document may be considered predecisional if it was ‘prepared in order to assist an agency decisionmaker in arriving at his decision.’ ” Assembly of the State of California v. United States Dep’t of Commerce, 968 F.2d 916, 921 (9th Cir.1992) (en banc) (hereinafter Assembly) (citation omitted), as amended on denial of reh’g (Sept. 17, 1992). A predecisional document “may include ‘recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the ageney[.]’ ” Id. at 920 (citation omitted). A predecisional document is “deliberative” if the “disclosure of [the] materials would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.” Id. at 921 (quotation omitted; alteration in original). Although early cases “contrasted ‘factual’ and ‘deliberative’ materials,” that distinction has lost strength. Id. at 921. Now, “[t]he key inquiry is whether revealing the information exposes the deliberative process. The factual/deliberative distinction survives, but simply as a useful rule-of-thumb favoring disclosure of factual documents, or the factual portions of deliberative documents where such a separation is feasible.” Id. (internal citation omitted). If the release of factual data would “enable the public to reconstruct any of the protected deliberative process” it may properly be withheld by the agency. Id. at 922-23.
v. Exemption 6: Protection of Personal Information Contained in Personnel, Medical, or Similar Files
Under this exemption, an agency may properly withhold documents that are “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C.A. § 552(b)(6). “Congress’ primary purpose in enacting Exemption 6 was to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information.” United States Dep’t of State v. Washington Post Co., 456 U.S. 595, 599, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982).
For purposes of Exemption 6, a “file” is a compilation of agency records. James T. O’Reilly, 2 Federal Information Disclosure § 16:3 (3d ed.2005). “Records” includes “all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business.” 44 U.S.C.A. § 3301; see Forsham v. Harris, 445 U.S. 169, 183, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980) (adopting section 3301 definition of “records” because FOIA does not define term).
Examples of records whose release might invade individuals’ privacy include arrest records, discipline records, passport or Social Security numbers, job performance records, union membership cards, and the like. See James T. O’Reilly, 2 Federal Information Disclosure § 16:16 (3d ed.2006). Moreover, it is conceivable that in certain situations, the release of an individual’s name, in and of itself, would violate his or her privacy interest, although such disclosure is not inherently a significant threat to an individual’s privacy. Nat’l Ass’n of Retired Fed. Employees v. Homer, 879 F.2d 873, 877 (D.C.Cir.1989).
To determine whether a document, or portion thereof, was properly withheld under Exemption 6, a court must balance the privacy interest protected by Exemption 6 against the “the public interest in disclosure.” United States Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 495, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (quotation omitted). The agency seeking to withhold information has the burden of establishing “the significance of the privacy interest at stake.” United States Dep’t of State v. Ray, 502 U.S. 164, 176, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) (finding that release of the names and addresses of Haitian interviewees in conjunction with highly personal information regarding marital and employment status would constitute a “significant” invasion of privacy). The public interest in disclosure “focuses on the citizens’ right to be informed about ‘what their government is up to.’ Official information that sheds light on an agency’s performance of its statutory duties falls squarely within that statutory purpose.” Id. at 177-78, 112 S.Ct. 541 (citation omitted; emphasis in original).
vi Exemption 7(C): Records or Information Compiled for Law Enforcement Purposes
Under Exemption 7(C), an agency may properly withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C.A. § 552(b)(7)(C). Exemption 7(C) may not be used when an agency does not have the law enforcement power to conduct an investigation. See Weissman v. Cent. Intelligence Agency, 565 F.2d 692, 696 (D.C.Cir.1977).
Because of their similar language, Exemption 7(C) is often closely associated with Exemption 6. However, Exemptions 7(C) and 6 “differ in the magnitude of the public interest that is required to override the respective privacy interests protected by the exemptions,” the former being more protective of privacy than the latter. Dep’t of Defense, 510 U.S. at 496 n. 6, 114 S.Ct. 1006. Exemption 7(C) applies to any disclosure that “ ‘could reasonably be expected to constitute’ an invasion of privacy that is ‘unwarranted,’ while Exemption 6 bars any disclosure that ‘would constitute’ an invasion of privacy that is ‘clearly unwarranted.’ ” Id. (emphasis added).
In Department of Defense, the Supreme Court held that an employer-agency’s disclosure of its employees’ home addresses to the employees’ collective bargaining representative would constitute a clearly unwarranted invasion of personal privacy under Exemption 6. 510 U.S. at 489, 114 S.Ct. 1006. In reaching that conclusion, the Supreme Court noted that while Reporters Committee, supra, turned on Exemption 7(C), not Exemption 6, the two exemptions overlap to the extent that “the dispositive issue ... is the identification of the relevant public interest to be weighed in the balance, not the magnitude of that interest.” Id. at 496 n. 6, 114 S.Ct. 1006 (emphasis in original).
As the Court noted in Section 1(A)(2), above,
Where there is a privacy interest protected by Exemption 7(C) and the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.
Favish, 541 U.S. at 174, 124 S.Ct. 1570. There is a presumption of legitimacy accorded to a government official’s conduct, id. (citing Ray, 502 U.S. at 178-79, 112 S.Ct. 541), and the evidence must be sufficient to overcome it.
B. Analysis
1. The Adequacy of the NTSB’s Search
In this motion, Defendants do not move for summary judgment that their search was adequate, although they did so in the still-pending previous summary judgment motions.
2. Claims of Exemption
Defendants have moved for summary judgment as to twelve documents not addressed by their earlier motions for partial summary judgment.
a. Exemptions Claimed and Not Contested by Plaintiff
Defendants moved for summary judgment that the CIA properly invoked the claimed exemptions to withhold or redact information in the records identified by MORI Document ID numbers 1255551, 1255553 and 1255555. Plaintiff does not contest the use of these exemptions. For this reason, the Court GRANTS summary judgment to Defendants as to these uncontested documents.
b. Exemption 4 (Confidential Commercial Information): MORI Document ID# 1305302 and Plaintiffs Record 12
In two documents — one identified by the Government as MORI Document ID# 1305302 and the other by Plaintiff as Record 12 — the CIA has redacted information provided by Boeing for use in the investigation of the crash of Flight 800, claiming it may be withheld under Exemption 4. Plaintiff challenges these redac-tions, arguing that their release would not cause Boeing substantial competitive harm.
To assist in the crash investigation, Boeing voluntarily provided information to the CIA and NTSB. Third Buroker Decl, at ¶ 10. This material apparently relates to “flight characteristics and performance of a Boeing 747, for example, lift coefficient, drag coefficient and pitching moment coefficient data.” Id. Boeing has stated that this information, which concerns the Boeing 747-100, is confidential and proprietary and it has detailed the “substantial competitive harm” disclosure allegedly would cause. Buroker Decl, at ¶ 35. See generally Breuhaus Decl Furthermore, Boeing claims that it would “be forced to reconsider” providing information such as this in the future, if the information is disclosed in this case. Second Breuhaus Decl, at ¶ 14.
Plaintiff does not dispute that, for purposes of FOIA, the information provided by Boeing and withheld by Defendants qualifies as commercial or financial information obtained from a person. Whether it is confidential is the question.
MORI Document ID# 1305302 consists of two “pages of tabular data from or relating to JFK and ISP radars and nine pages of graphs (preliminary), containing handwritten annotations and relating to technical characteristics, e.g., lift coefficient, drag coefficient and pitching coefficient.” Third Buroker Deck, at p. 56. Three pages of graphs are redacted in full; the remaining six graphs that were released appear to consist of plotted data points and simulation results.
Plaintiffs Record 12 is a six-page email dated April 29, 1997. The Vaughn index describes it as “addressing points raised by a FBI special agent concerning CIA analysis and conclusions during inter-agency coordination.” The sender and recipient are not identified on the portion that was released. Nor are the initials of various witnesses who are mentioned. From the third page of the released portion of the email, the CIA also redacted slightly more than one line of text. Plaintiff posits that this redaction concerns “wing tip separation under G-load,” evidently basing this assumption on the immediately preceding text of the email.
The Court has reviewed the email (MORI Document ID# 1255554 and Plaintiffs Record 12) and the radar graphs (MORI Document ID# 1305302) in their entirety, both having been filed in camera and under special seal. Applying the National Parks test, the Court finds that Defendants have not proffered evidence sufficient to meet their burden to show that release of this information likely would impair the government’s ability to obtain comparable necessary information in the future. Indeed, they do not argue that it would. Simply because Boeing speculates that it would reconsider its policies of providing information such as this to the government is, by itself, not enough.
The parties disagree whether the disclosure of this information would cause Boeing substantial competitive harm. Defendants maintain that this and other Boeing-provided information is confidential commercial information that has “independent economic value to Boeing because [it is] not freely ascertainable or publicly available for use by other parties.” Breuhaus Deck, at ¶¶ 6, 8. The 747 Classic was first developed in the 1960s. Id. at ¶ 13. From the point of view of aircraft and computer technology, that distant era was relatively unsophisticated. Now, more than forty years later, aircraft design and manufacture have been modified and refined to a level not only strikingly different, but undoubtedly far superior. This proposition requires no further elaboration. One may therefore reasonably conclude that a one-line reference to this once-confidential information in Plaintiffs Record 12 (MORI Document ID# 1255556) has little or no remaining commercial value insofar as aircraft design is concerned. The same is true of the withheld graphs.
Nevertheless, Defendants maintain, the deleted information retains independent economic value due to its use in flight simulators. Boeing invested several million dollars in compiling this data, and it licenses the data for use in proprietary flight simulators for flight training, engineering and other commercial purposes. Id. at ¶¶ 7, 13. Sometimes, these licensees are in direct competition with Boeing. Id. A flight simulator data package license for the 747 Classic costs approximately $1 million. Id. at ¶22. Additionally, Boeing claims that no other company has invested the resources to reproduce its training simulator database. Id. at ¶ 16. Boeing competes with other companies in providing flight training, aircraft certification and engineering services through its training simulator database, but enjoys a competitive advantage due to its status as the “sole source” of the training simulator data. Id. at ¶ 18. A competitor attempting to reproduce this data and sell its own version of the data package would need to make an investment of some $20 million in developmental costs, claims Boeing, and Boeing is aware of no other company that has done so. Id. at ¶¶ 15-16.
In response, Plaintiff contends that the data in these records can be independently obtained through the use of computational fluid dynamics (“CFD”). CFD computer programs are used in the aerospace industry to calculate and simulate aircraft performance. Hoffstadt Aff. (Sept. 8, 2005), at ¶¶ 4-6. CFD computer programs can be used to model three dimensional models of arbitrary aircraft configurations and can calculate “airflow, pressure, forces, and moments of such shapes....” Id. at ¶ 4. One such program, called VSAERO, is sold by Analytical Methods, Inc. (“AMI”), for $27,500. Id. at ¶ 6. AMI also sells the geometry of the 747-200 and the 747-300 for use with VSAERO for $5,000. Id. Using VSAERO, in conjunction with this geometry, one can replicate the type of aerodynamic data contained in the withheld records. Id. at ¶27. Plaintiffs expert, Hoffstadt, states that these records cannot be considered trade secrets because the same information can be obtained from the CFD model with a high degree of precision. Id. at ¶¶ 9, 17. Hoffstadt further states that (1) the number of Classic 747s in service continues to drop, lowering the market for these services, and Boeing ceased any new deliveries in 1990; (2) it is unclear to what extent, if any, release of this data would enable a competitor to develop such a package without still having to incur the full amount of Boeing’s claimed development costs; and (3) Boeing has not sold any licenses for four years. Id. at ¶¶ 29-30, 34, 43. Furthermore, Hoffstadt notes, any competitor would still have to obtain approval and certification from each applicable national aviation regulatory agency, and to do so the competitor would have to present actual flight test data. Boeing has not previously released such data and it would not be required to do so as a result of this motio