FOIA Request for CIA Docs on TWA Flight 800 Crash Denied

In 1996, TWA Flight 800 left New York's JFK International Airport for France. Within minutes of takeoff, witnesses reported seeing a streak of light head towards the plane, followed by a massive explosion. All 230 passengers were killed. The official cause, according to the Central Intelligence Agency, the Federal Bureau of Investigation, and the National Transportation Safety Board was a mechanical defect in the center wing fuel tank.

Thomas Stalcup thinks the official story is a government-wide cover-up, likely of some sort of missile testing, reports Cape News. He produced a documentary, "TWA Flight 800," which initially aired on Epix and is now highly rated on Netflix. But even with the documentary in hand, he wants more information, specifically documents from the CIA that he requested via the Freedom of Information Act.

1st Circuit Rejects FOIA Request

Before addressing the FOIA exemptions that applied to the CIA's withheld documents, the First Circuit first recounted what had already been disclosed:

• Before this lawsuit was brought, 25 documents that were previously released in response to a similar FOIA request.
• During litigation, 49 additional documents, one DVD, 89 partially redacted documents, and 14 documents created by other agencies.

Stalcup is seeking:

• An unredacted version of the 1998 Analysis of Radar Tracking document.
• The 1998 Dynamic Flight Simulation analysis.
• The names of the eyewitnesses interviewed by the FBI.

The First Circuit held that the first two documents were protected by Exemption 5 of FOIA, the deliberative process exemption, which permits an agency to withhold "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. § 552(b)(5). In more familiar terms, the exemption protects from disclosure documents containing work product, attorney-client correspondence, or material that is otherwise "privileged in the civil discovery context."

Of course, there is an exception to the exception for purely factual data, which must be disclosed. Unfortunately, the Ninth Circuit previously examined these documents and ordered the CIA to turn over all of the severable factual data, data which was also given to Stalcup.

As for the witnesses, Exemption 7(C) shields information compiled for law enforcement purposes when the release of such records "could reasonably be expected to constitute an unwarranted invasion of personal privacy." Both the district court and the First Circuit held that the witnesses' privacy interests were not outweighed by a "perceived cover-up."

Ninth Circuit Did Too

Much of the First Circuit's opinion calls back to the Ninth Circuit's evaluation of a nearly identical FOIA request in 2009, one initiated by Ray Lahr, a former Navy and commercial pilot and a member of the Air Line Pilots Association who also believes that this was a cover-up of an errant U.S. Navy missile strike. He made 145 FOIA requests to the NTSB and 105 to the CIA.

You can see the trailer for Stalcup's documentary here:

Related Resources:

• Stalcup v. CIA (First Circuit)
• 1st Cir. Judge Bruce Selya Speaks About FISA Court (FindLaw's U.S. First Circuit Blog)
• 1st Cir. Kicks Inmate Suicide Attempt Case; SCOTUS Appeal Pending (FindLaw's U.S. First Circuit Blog)