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Case number 21-5257.

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Flores Rights Education Fund Inc.

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and Paul Hudson, a balance versus Federal Aviation Administration.

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Mr. Sandler for the balance.

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Mr. Hammond for the appellee.

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Good morning, counsel.

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Mr. Sandler, please proceed when you're ready.

[00:00:21] Speaker 02:
Thank you, Chief Judge, and may it please the court.

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It is difficult to imagine a case in which the fundamental purposes of the Freedom of Information Act

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be implicated to a greater extent than in this one.

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Two fatal crashes of the Boeing 737 MAX aircraft cost 346 lives.

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The original decision by the Federal Aviation Administration to certify that aircraft as safe was manifestly flawed, and numerous official reports and studies showed that that original process was corrupted by conflicts of interest and a culture of

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After grounding the aircraft in March 2019, Boeing submitted numerous proposed fixes and modifications to the aircraft design.

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And in November 2020, the agency ungrounded the aircraft, found it fit and safe to operate based on Boeing's proposed design changes.

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Flyer's rights has been trying through its foyer

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to get the FAA simply to reveal the basis for that full factual basis for that decision.

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Specifically, the certification plan setting out the steps that Boeing was going to take to show compliance, testing methods, flight test plans, the results of those tests, and safety analysis.

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The record for the district court included the declarations of seven independent experts on robotics

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by the FAA that without access to those categories of documents would not be possible.

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It is not possible to determine whether the fixes submitted by Boeing and relied upon by the FAA actually made this aircraft safe to fly.

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The district court accepted the FAA's claims that all of this information was Boeing, confidential commercial information shielded from public scrutiny under exemption four.

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and we submit to this.

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Can I just ask you, you're not contesting that it's confidential, right?

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We do not contest.

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You're not contesting that?

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Correct.

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Correct.

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Okay.

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So your argument is, is it through these public statements, the FAA put Boeing on notice, that it would be making them public, right?

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There are several arguments.

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Well, that's one of them, right?

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Right.

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One of them.

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So what in those statements is for

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by the FAA commissioner or administrator before Congress, and then there's two Boeing statements by the CEO, right?

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The transparency statements.

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So we think that in this case, the state, we're not drawing on a blank state here.

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My question is, what could you point to in those, start with the FAA statements, the four FAA statements that, I know they call for,

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The agency is calling for transparency.

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But what in those statements suggests that that specifically includes or would put Boeing on notice that its documents would be released public?

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The pledges of transparency were not made generally about agency policy.

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It was specifically about the ungrounding and recertification process.

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Right, about the 737 MAX.

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What about the documents?

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What in the statements would put Boeing on notice that these compliance materials would be released?

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The pledge was that there would be full transparency with respect to the recertification process for this aircraft.

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And it's clear that those statements were deliberately made to draw a contrast with the original flawed certification process, in which the fundamental issue is Boeing's withholding of information from the agency

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and airline pilots in the public.

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In fact, Boeing admitted to a criminal conspiracy to withhold information and deceive the agency.

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We submitted, in addition to the fact that the unrebutted expert testimony, that without this information, the public couldn't determine whether the FAA's decision was.

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That's not the question before us, right?

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Even if you're right that without that information,

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The public couldn't assess it.

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That's not the question in a FOIA case.

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The question in the FOIA case, in the way you set it up, since you've conceded they're confidential, is what in the record suggests that the agency put Boeing on notice that the specific information you seek would be public.

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Exactly.

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conceding that the public couldn't effectively analyze the effectiveness of the FAA decision without it.

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There still has to be evidence, correct, that the FAA put Boeing on notice that these materials would be made public.

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The question is, what in this record did they?

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The statements that we cite, well,

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because transparency, the Pledge of Transparency specifically with respect to this recertification process would be meaningless unless these categories of documents are at least resubmitted.

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Well, see, you're back to arguing the wrong point now.

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It can't be that

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They lose their confidentiality because, at least I don't think it could be that they lose their confidentiality because the public couldn't accurately assess the effectiveness of the agency without them.

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We still have to answer the question, where did the FAA say that these, or put Boeing on notice, that these materials would be public?

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You agree that's the question, right?

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Right, basically the fact that the specificity of the pledges they made with transparency combined with the fact that

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those pledges would be meaningless without the disclosure of these documents.

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What we believe meant that Boeing was reasonably put on notice.

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We submitted a declaration from experts on that point, too, one of whom was a former Boeing engineer, said that, quotes in his declaration in this record, Boeing would have clearly understood that the FAA could not meet its commitment to transparency

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without making these categories of information publicly available."

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End quotes.

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Somebody who had years of experience with Boeing.

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Again, I'm rebutted on this one.

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The other issues raised here, 80 pages of the documents in this case that were withheld were FAA's own comments.

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About boeing submissions that its proposed fixes we submit those were not obtained from a person quotes within the meaning of exemption for because the government created those comments not going.

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The district court allow the agency to withhold those because some confidential commercial information could be extrapolated from those comments.

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But we would submit that's kind of a standard with no limit.

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At some point, the FAA must have said, this is our view.

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This is our reaction.

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And if you can never get that from the agency because you can somehow reverse engineer the confidential information, it would, in a lot of context, get that out of the act.

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I'm looking at the FAA's declaration.

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It says specifically that

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These comments nonetheless reveal proprietary information, which was only provided to FAA by Boeing.

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That's what the FAA says.

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That's what the FAA says, but it's inherently not logical that you can, nothing that the government said about the Boeing's fixes.

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It sounds like what you want us to do is look at the documents.

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Is that what you want?

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We don't normally do that.

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I don't know.

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We haven't sworn affidavit here from an agency.

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It's pretty specific.

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And in fact, it's pretty specific.

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It's much more specific than in other cases.

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And I don't know.

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And the agencies are entitled to a presumption that these affidavits are accurate.

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So I don't know how we can pierce what she says.

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Well, the FOIA requesters are always at a fundamental disadvantage.

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Yeah, right.

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That's the problem with the statute.

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I agree.

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That's inherent in every FOIA case.

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We always have a precise problem.

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You're at a disadvantage because you don't see the documents, and we haven't seen the documents.

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And all we have is a declaration to go on.

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So we have a whole bunch of cases that tell us that all we require is that the declarations be sufficiently specific and rational.

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And I don't see where you've in the record contested any other than to say it just can't be.

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Well, right.

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It's inherently not logical.

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That doesn't make it up.

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Every word of that government comments reveals commercial information about the design of the aircraft.

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Oh, hold on just, can we just hold one second because we've lost opposing counsel on a Zoom feed.

[00:10:02] Speaker 01:
He can hear.

[00:10:02] Speaker 03:
Can you hear me?

[00:10:05] Speaker 06:
Yes.

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I can see you.

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And you can hear what's going on in the argument itself.

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I can both see and hear you.

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I've seen myself on the Zoom feed, but I guess you guys cannot see me.

[00:10:17] Speaker 01:
Yeah, please continue.

[00:10:19] Speaker 05:
Thanks.

[00:10:21] Speaker 02:
I'll sit whatever time I have.

[00:10:24] Speaker 01:
I had a quick question.

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You raised the secret law argument.

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which normally comes up in Exemption 5.

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Excuse me.

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How does the secret law argument work in Exemption 4?

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It hasn't been used there before.

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So how do you conceptualize how it works here?

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Even though the secret law argument was developed and has been addressed only in the context of Exemption 5, it is what the Supreme Court made clear in this year's Roebuck case is that FOIA itself

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Leaving aside section 5 requires the disclosure of interpretations and agency statements that effectively embody the agency's effective law and policy.

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And what we're saying here is that when the FAA allows Boeing to make up its own test to show how they comply with the FAA's requirements and then

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claim those tests can be kept secret because the tests themselves are proprietary.

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We're talking about keeping secret agency policy, agency effective law and policy, affects the rights of Boeing, it affects the rights of the public.

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I think we would, and we would all have loved it if for the barn saying we could say, I'll make up my own test, you know,

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And then I'll take it.

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And guess what?

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I passed it.

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I mean, it affects my rights.

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It affects the rights of the test taker and also the rights of the public that this lawyer is going to assert.

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That's why we submit this effective law.

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Thank you, Mr. Sandler.

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We'll give you some time for rebuttal.

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Mr. Hammond, we'll hear from you now.

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Good morning, and may it please the court, Derek Hammond on behalf of the APOLE, the Federal Aviation Administration.

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The question posed by this appeal is the extent to which third parties who submit information to the government can expect the government to maintain the confidentiality of the privately held commercial or financial information.

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In this case, we consider the confidential commercial information that Boeing Company submitted to the FAA in connection with the certification of a design change to a 737 MAX aircraft.

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Under FOIA Exemption 4, the government may properly withhold information if it is 1, obtained from a person, 2, commercial or financial in nature, and is 3, confidential.

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Appellant's primary contention takes aim at this third criterion, whether the information at issue can be deemed confidential.

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As counsel admitted in this case though, there is no dispute about the confidentiality of the information.

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It is under Argus leader, information that Boeing actually and customarily treated as confidential

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and had been provided assurances of express and implicit assurances of confidentiality when provided that information to the government.

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The only dispute in this regard is whether statements by FAA officials undid this confidentiality by vague and amorphous commitments to transparency.

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But none of these statements expressly vowed to release any of Boeing's otherwise confidential information.

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Rather, these statements and some in substance reflect a commitment to work with the independent review bodies that were evaluating the issues that had arisen in connection with the aircraft and to the general concept of greater transparency in the certification process.

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Nothing in these statements, however, would have reasonably alerted Boeing that the FAA was departing from its decades-long historical treatment of its confidential information.

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And particularly here, where we are talking about the relinquishment of sensitive confidential commercial information owned not by the government, but by a third party, the bar should be especially high.

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So as to safeguard that information from the intolerable result, that such information will be divulged without the third party having a reasonable opportunity to ensure its protection.

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Because all of the information in this case was confidential commercial information obtained from Boeing, we respectfully request that this court affirm the judgment below.

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I'm happy to entertain any questions.

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I just have one question.

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The briefs, the parties talk about the regulations that are at issue here, but could you just tell us quickly what regulations are we talking about here?

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And do they include or incorporate by reference means of compliance?

[00:15:03] Speaker 05:
Yes, Your Honor.

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The regulations talk about the need to have a means of compliance to demonstrate that a design element meets the regulatory standard.

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My understanding is that the regulatory requirements are found in 14 CFR parts 2139 and 183.

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And you're telling us all they do is set standards.

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They don't specify means of compliance either within the body of the regulations or by incorporation.

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You know, there's so many agency regulations that set standards and then incorporate private standards as means of compliance.

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Is that not this case?

[00:15:55] Speaker 05:
Correct, Your Honor.

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My understanding is that the regulations applicable in this case did not have any specific requirement that Boeing show compliance through any particular means.

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My understanding is that there are a set of publicly available

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means of compliance that parties may elect to use, but they're not required to do so.

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And Boeing did not do that here.

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All of the means of compliance that we're dealing with were proprietary information developed by Boeing for this specific purpose.

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I wanted to ask you about two documents in particular.

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One is document 45.

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One is

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document 50, where the Vaughn index description there says, and the document is described as the first 45 as a comments list from FAA, from the FAA, their questions and comments.

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And the basis for withholding is FAA says we withhold this record because it contains technical comments and Boeing responses.

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And then after that, it just says Boeing objects, Boeing notes, Boeing further notes.

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But it never says the FAA, which is the one that's supposed to comply with FOIA here, agrees that those things will happen.

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It just describes Boeing's objections.

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And we've never said that technical comments alone are gonna be sufficient for withholding, right?

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You need to make the assertions about

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things being intertwined.

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And in the, both in Western case, the Vaughn index was much more, didn't just say technical information, it identified the categories of technical information, gave a lot more information, but the only explanation we have for 45 and again for 50 is FAA comments and Boeing responses.

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FAA withholds it because it's technical,

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And then it just describes a Boeing's arguments.

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Is there any case where we have held that a Vaughn index description like that is sufficient?

[00:18:27] Speaker 05:
I don't know of a specific case like that, but I would also point the court to the declaration as well that should be read in conjunction with the Vaughn index.

[00:18:40] Speaker 05:
First of all, at JA 242, paragraph 45 of the first Kabler declaration,

[00:18:46] Speaker 01:
Hang on, let me catch up to you.

[00:18:48] Speaker 01:
Sorry, the first tabular one, which paragraph?

[00:18:51] Speaker 05:
Paragraph 45.

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Starting in the middle of the paragraph, it describes that, as required, the FAA made its own determination as to whether Exemption 4 applied to each withheld document or redacted portions of documents.

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The aircraft certification services FOIA coordinator and subject matter experts determined that the vast majority of Boeing's objections were valid.

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However, in circumstances where the aircraft certification service disagreed with these objections, the FOIA coordinator identified the disputed redactions to Boeing.

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In each instance, after consultation with Boeing, Boeing agreed to withdraw the disputed objections and the material was released to Flyer's rights.

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The aircraft certification service segregated and disclosed any information not covered by a FOIA exemption that could reasonably be segregated out and released.

[00:19:38] Speaker 01:
That's incredibly general language.

[00:19:42] Speaker 05:
There's also more information about what these specific documents entail.

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If you bear with me for one moment.

[00:20:02] Speaker 05:
Paragraph 37 of the declaration, which appears on JA 239,

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And I believe, yeah, that gives more information as well about the rationale for withholding those documents.

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It describes that these pages consisted of charts, which provided FAA's comments to earlier versions of the project deliverables to which they were attached.

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Note Boeing's position with respect to those comments and summarize changes that Boeing made to accommodate FAA's comments.

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With respect to the remaining eight and then it goes on to describe the other the other items.

[00:20:42] Speaker 01:
There's nothing again there's nothing both in Western there was sort of details about in real granular details about without revealing things but much more just sort of labeling things technical and.

[00:20:57] Speaker 01:
It doesn't even say here they're intertwined.

[00:21:01] Speaker 01:
It just described that it has this thing and that thing and the other thing, FAA, Boeing, FAA.

[00:21:06] Speaker 01:
It doesn't claim intertwined here, and it doesn't in the bond index, and it seems to just characterize what Boeing said.

[00:21:14] Speaker 01:
Why is that?

[00:21:15] Speaker 01:
Why shouldn't the bond index show?

[00:21:17] Speaker 01:
I'm sorry, I'll just try to finish this.

[00:21:19] Speaker 01:
I thought for you, sorry.

[00:21:20] Speaker 01:
No, no, no, I'm breaking it up myself here.

[00:21:26] Speaker 01:
Why isn't it the job of FAA in its Vaughn Index to say, not just technical information, but this was about, these were 12 comments about the MCAS system, six about brakes, whatever piece you wanna, wheels, something, engines, whatever, and in the Vaughn Index say they were intertwined.

[00:21:50] Speaker 01:
and can't be released.

[00:21:52] Speaker 01:
I don't understand why the VON index is just supposed to, the FAA says it's technical.

[00:21:59] Speaker 01:
And here's Boeing's objections.

[00:22:00] Speaker 01:
And then we look at this paragraph here, which is at a very, I take it all as true, but it says that at a very, very 40,000 foot level of what was going on on these documents.

[00:22:15] Speaker 01:
So the question is, why isn't a more,

[00:22:19] Speaker 01:
granular description on one reflecting the FAA's judgment about what these documents would reveal, not Boeing's, what Vaughn requires.

[00:22:31] Speaker 05:
Well, Your Honor, respectfully, I believe that the Vaughn in conjunction with the declaration, and I guess the more pertinent provision that I should have pointed you to earlier is on JA 244.

[00:22:44] Speaker 05:
So it's kind of spread out across the declaration.

[00:22:47] Speaker 05:
At paragraph 51,

[00:22:49] Speaker 05:
It describes that although this kind of technical information is incorporated into FAA author comments, these comments nevertheless reveal proprietary information originally provided to FAA by Boeing.

[00:23:03] Speaker 06:
I think that's about documents 41 and 83, not 45 and 50.

[00:23:10] Speaker 06:
But 45 and 50 is above that in the same paragraph.

[00:23:14] Speaker 06:
The sentence says, these charts contained, well, first of all, isn't that right that the sentence you just referenced refers to documents 41 and 83 rather than 45 and 50?

[00:23:25] Speaker 05:
I don't know that that's correct, Your Honor.

[00:23:29] Speaker 05:
interpreted this as applying to all of the, because both of these reflect FAA comments.

[00:23:36] Speaker 06:
But it's right after a sentence that says, of the eight pages produced with redactions, the FAA redacted only that information that originated with Boeing.

[00:23:43] Speaker 06:
I thought that the eight pages produced with redactions refer to 41 and 83, plus 45 and 50 were withheld in their entirety.

[00:23:52] Speaker 06:
But maybe my impression's wrong.

[00:23:56] Speaker ?:
Right.

[00:23:57] Speaker 06:
It could be read that way, Your Honor.

[00:24:00] Speaker 06:
I don't know what you mean by it could be read that way.

[00:24:02] Speaker 06:
It's exactly what it says.

[00:24:04] Speaker 06:
And if the eight pages... Isn't it true that eight pages produced with the redactions only refers to 41 and 83?

[00:24:12] Speaker 06:
That can't refer to 45 and 50, because 45 and 50 were withheld in their entirety.

[00:24:18] Speaker 05:
That's true, but all of these pages deal with FAA comments, incorporate FAA comments.

[00:24:26] Speaker 06:
I just assumed that the last sentence when it said these comments nonetheless revealed proprietary information, it was talking about the sentence that came right before it.

[00:24:34] Speaker 06:
But you still have sentences before that.

[00:24:36] Speaker 06:
And I have a question about that.

[00:24:38] Speaker 06:
Earlier in paragraph 51, in particular reference to documents 45 and 50, there's a sentence that says these charts contain FAA comments to Boeing's project deliverables

[00:24:48] Speaker 06:
which in themselves would reveal technical data and Boeing's proprietary methods of compliance if released.

[00:24:54] Speaker 06:
Sharks also provided Boeing's comments in response to the FAA's comments identifying actions Boeing took to address the FAA's comments.

[00:25:01] Speaker 06:
That refers to 45 and 50.

[00:25:04] Speaker 05:
Yes, you're correct, Your Honor.

[00:25:05] Speaker 05:
My apologies.

[00:25:06] Speaker 06:
And then on the part that says which in themselves would reveal technical data and Boeing's proprietary methods of compliance if released, without getting to the level of generality at which that is with Judge

[00:25:18] Speaker 06:
point made by Judge Mollett.

[00:25:20] Speaker 06:
I just want to make sure that when it says which in themselves, that's talking about FAA's comments.

[00:25:25] Speaker 05:
That's correct.

[00:25:27] Speaker 06:
It's not because it says these charts contained FAA's comments to Boeing's project deliverables, which in themselves would reveal, which I guess the question is whether that which in themselves refers to the FAA's comments or does it refer to Boeing's project deliverables?

[00:25:45] Speaker 06:
And I read it to refer to FAA's comments.

[00:25:47] Speaker 05:
Yes, that's correct, Your Honor.

[00:25:48] Speaker 05:
It refers to the FAA comments.

[00:25:51] Speaker 01:
OK.

[00:25:52] Speaker 01:
But what about the technical data?

[00:25:53] Speaker 01:
Why is that?

[00:25:55] Speaker 01:
Again, in Gulf and Western, we were able to list the types of technical data.

[00:26:02] Speaker 01:
Scrap rates, break-even point calculations, actual cost data.

[00:26:07] Speaker 01:
It wasn't just somebody saying it's technical.

[00:26:10] Speaker 01:
We can't talk about it.

[00:26:12] Speaker 01:
Because there's probably a lot of technical things about these airplanes that are also going to be known to the public, known to these countless other people outside Boeing and the FAA, especially given all of the studies and reports that were done on this.

[00:26:30] Speaker 01:
And so why is just saying it would reveal technical data?

[00:26:33] Speaker 01:
I get your proprietary methods, but it seems to draw a distinction between technical data and proprietary methods.

[00:26:41] Speaker 05:
Well, the only technical data that was withheld also was, I mean, was that which is maintaining confidence, not technical data that was otherwise known to the public.

[00:26:57] Speaker 01:
So all the technical data is proprietary.

[00:27:00] Speaker 01:
Are you just saying the methods of compliance are proprietary and the technical data is also proprietary?

[00:27:05] Speaker 05:
All of that which is withheld.

[00:27:09] Speaker 01:
And so after Gulf and Western, we're not going to require any more anymore.

[00:27:13] Speaker 01:
It's just enough for an agency to say it was technical data.

[00:27:18] Speaker 01:
And so therefore it's privileged.

[00:27:22] Speaker 01:
Well, I mean, there's more to it than just about the outside of the airplane that anybody walking by can say.

[00:27:28] Speaker 01:
Yeah.

[00:27:29] Speaker 01:
Where are the engines located?

[00:27:31] Speaker 01:
How I off the ground are the engines?

[00:27:33] Speaker 01:
That's technical data.

[00:27:37] Speaker 05:
Yes, but they're not withholding information that is otherwise known to the public.

[00:27:43] Speaker 05:
And I think that's what the declarations, in this case, speak to, that they did undertake an effort to segregate out any information that is not covered by Exemption 4.

[00:27:57] Speaker 06:
Is the technical data, and I just want to make sure I get the response to Judge Malik's question, is the technical data

[00:28:06] Speaker 06:
proprietary information.

[00:28:09] Speaker 05:
Yeah, yes it is because it deals with the the technical details this technical specifications that Boeing.

[00:28:20] Speaker 05:
Not only technical specifications but also I think perhaps.

[00:28:24] Speaker 05:
I don't know specifically in this instance, but all of the data that we're talking about here generally deals with the technical specifications of the aircraft or information that could lead someone to discern that technical information.

[00:28:41] Speaker 05:
And that is information.

[00:28:43] Speaker 05:
Which is proprietary.

[00:28:44] Speaker 05:
Which is proprietary and held by Boeing and confident.

[00:28:50] Speaker 01:
There's a problem here that we're adding words into this.

[00:28:54] Speaker 01:
Declaration, writing words to the VON index and the declaration that aren't there.

[00:29:01] Speaker 01:
Is that a problem?

[00:29:03] Speaker 05:
I'm sorry, which words are you?

[00:29:06] Speaker 01:
Proprietary technical data, private, undisclosed technical data, non-public technical data.

[00:29:12] Speaker 01:
Because one of the issues was the location of the engines, which is technical data for sure.

[00:29:18] Speaker 01:
And people can tell that by looking at the outside of the airplane.

[00:29:20] Speaker 01:
I can't imagine that's still considered proprietary.

[00:29:25] Speaker 01:
It's just what I worry about.

[00:29:27] Speaker 01:
I'm sorry, just to lay on the line and I apologize for interrupting you.

[00:29:30] Speaker 01:
What I worry about is sort of cookie cutter language in vaughn indices and declarations and that doesn't allow doesn't contain the type of

[00:29:42] Speaker 01:
detailed information our prior cases like Gulf and Western have had.

[00:29:48] Speaker 01:
And so we're slipping on this.

[00:29:50] Speaker 01:
And so then there's really no way to make sure that people dealing with a lot of information, very busy people have looked at these things with the rigor that's needed.

[00:30:03] Speaker 01:
If they haven't sworn declarations that say exactly what they want, what we now want to assume that they meant.

[00:30:12] Speaker 05:
Sure.

[00:30:13] Speaker 05:
The one other point I guess I would mention is that these documents, I mean, the one document I think is 78 pages long, it's quite sprawling and I believe it covers quite a bit of material.

[00:30:27] Speaker 05:
But obviously that's not in the record, but just to provide maybe a little more context here.

[00:30:35] Speaker 05:
And I don't know, I mean, sorry, I think the case law requires

[00:30:43] Speaker 05:
you know, for them to reasonably describe the information without revealing the information.

[00:30:49] Speaker 05:
And in some cases, I don't know how they would describe what the technical information is without perhaps revealing what the technical information is or what the proprietary information is.

[00:30:59] Speaker 01:
Do we know that was the problem here that they couldn't say anything more?

[00:31:02] Speaker 01:
They couldn't say as they did in describing Bowen's response, you know, in the beginning that these were about

[00:31:10] Speaker 01:
Boeing says it's going to be about MCAS or whatever you call it, speed trim lights.

[00:31:17] Speaker 01:
That's all, right?

[00:31:23] Speaker 01:
Boeing will say that, but the FAA just puts slaps on the label technical information.

[00:31:28] Speaker 01:
It feels to me like this case would be

[00:31:31] Speaker 01:
to rely just on the fact they said technical information.

[00:31:34] Speaker 01:
They haven't said we can't be any more specific if they didn't say that.

[00:31:38] Speaker 01:
And so we're moving our case law one step further in the direction of less information and bond indexes and declarations that maybe there's a good reason in this case.

[00:31:48] Speaker 01:
That's your position.

[00:31:50] Speaker 01:
But we're certainly moving the law one step further to

[00:31:54] Speaker 01:
even less information being disclosed and less ability on the parts of courts to ensure without requiring in-camera review every time there's a FOIA case to ensure that in fact everything's been disclosed that can be disclosed.

[00:32:10] Speaker 05:
Yeah, I take your point, Your Honor.

[00:32:13] Speaker 05:
I do think the trick, as I mentioned, in every FOIA case, to be honest, is how do you describe the efforts to segregate information and why no more information can be disclosed, because they do that here.

[00:32:28] Speaker 05:
But how do you do that without revealing what the information is?

[00:32:32] Speaker 05:
And doing that on a reasonable level, right?

[00:32:37] Speaker 05:
You don't have to reveal information that is nonsensical or meaningless in that effort.

[00:32:52] Speaker 05:
That just entail too much agency resources and it's not reasonable.

[00:32:58] Speaker 06:
Can I ask one question that ties this, maybe ties some of this together?

[00:33:03] Speaker 06:
On paragraph 67, page 249, the declaration says, this is dealing with psychic ability, but Howard, the majority of the pages of responsive records have been withheld in full.

[00:33:13] Speaker 06:
As explained more fully above in section two of this declaration, the withheld documents consists almost entirely of Boeing's proprietary technical data and the proprietary method of compliance.

[00:33:23] Speaker 06:
Does that mean that the technical data that was referenced earlier is proprietary?

[00:33:29] Speaker 05:
Yes.

[00:33:30] Speaker 05:
That is what I mean when I say that they are only withholding the proprietary technical data, the confidential technical data, and items that are already publicly known would have been disclosed.

[00:33:52] Speaker 01:
That was part of a segregability discussion, and there was no segregability

[00:33:56] Speaker 01:
segregation of information at all for these documents, it was a total withholding.

[00:34:01] Speaker 05:
For these charts, that is correct.

[00:34:02] Speaker 01:
We shouldn't take anything of the fact they didn't call it proprietary technical data here.

[00:34:08] Speaker 05:
In the bond index for these specific charts?

[00:34:12] Speaker 01:
Where they weren't undergoing a segregation process, right?

[00:34:16] Speaker 01:
Yeah, I mean- Because there was no redaction.

[00:34:18] Speaker 05:
Right, I mean, they attempted to segregate to the extent that they could, and if information, like they said, they did a line-by-line review, and to the extent that information could have been disclosed, they would have done that.

[00:34:31] Speaker 01:
So how would we write an opinion that would, or can you tell us, or maybe you can point us to some of the declarations that would assure us that anything beyond using the phrase technical data would itself reveal

[00:34:46] Speaker 01:
because there's lots of times that there are references to categories of technical data throughout these documents.

[00:34:52] Speaker 01:
But for these documents, how do we know they couldn't have said anything more than technical data without revealing?

[00:34:59] Speaker 01:
If I understood your argument correctly, that seemed to be your concern.

[00:35:02] Speaker 01:
And we are in a highly technical area here, I get that.

[00:35:05] Speaker 01:
How do we know, or what's the best part of the declaration?

[00:35:10] Speaker 01:
Maybe it's the part that Chief Judgment of Austin just read

[00:35:14] Speaker 01:
even saying anything beyond technical data, even giving sort of categories, this involved the MCAS system, this involved the engine location or size, this involved redundant protective measures in the engineering system or electrical system.

[00:35:33] Speaker 01:
How do we know they couldn't say anything more?

[00:35:35] Speaker 05:
I think paragraph 67 is the best evidence that that's true.

[00:35:43] Speaker 01:
Okay, thank you.

[00:35:45] Speaker 05:
Thank you, Your Honor.

[00:35:46] Speaker 06:
Thank you, Council.

[00:35:48] Speaker 06:
Mr. Sandler, I'll give you two minutes for rebuttal.

[00:35:54] Speaker 02:
Thank you, Your Honor.

[00:35:56] Speaker 02:
A couple of points on this.

[00:35:58] Speaker 02:
With respect to this issue of the documents that the Judge and Chief Judge were referring to, so it's clear nothing was disclosed about those charts.

[00:36:12] Speaker 02:
In the Gulf and Western case, the court held that specific cost numbers, cost calculations that were quoted in the documents edition could be withheld and extrapolated because they were quoted in those documents.

[00:36:30] Speaker 02:
We are not seeking here the actual technical proprietary information.

[00:36:36] Speaker 02:
In that chart, there would be a columnist.

[00:36:39] Speaker 02:
Boeing says, here's our design that we're submitting.

[00:36:42] Speaker 02:
The FAA's comments would have to say something like, yeah, this didn't work because the pilot still couldn't do X, or that this thing still couldn't be operated.

[00:36:51] Speaker 02:
That's not the idea that you can extrapolate technical information from that.

[00:36:57] Speaker 02:
Again, that's why we suggest, again, the disadvantage of not knowing anything, the details of the documents.

[00:37:04] Speaker 02:
It doesn't make sense that 100% of FAA's own comments

[00:37:09] Speaker 02:
column in the chart, this is our view, this is what we found wrong, reveals the patented or proprietary, the patent is probably disclosed, the proprietary design of the aircraft fixes that they're submitting.

[00:37:28] Speaker 02:
And then just to Judge Tatel's question about the regulations, the regulations basically allow but do not require

[00:37:39] Speaker 02:
the manufacturer to use publicly available means of compliance.

[00:37:49] Speaker 02:
Instead, again, they allow the manufacturer to make up its own test by contrast with regulations, say, for the Food and Drug Administration that say, here's the criteria for the test that you have to follow in order to improve drug safety.

[00:38:04] Speaker 02:
Thank you.

[00:38:06] Speaker 06:
Thank you, counsel.

[00:38:07] Speaker 06:
Thank you to both counsel.

[00:38:08] Speaker 06:
We'll take this case under submission.