Using FOIA to Investigate the TWA 800 CrashClifford’s Notes, Chicago Lawyer, 12/01/2006
By Robert A. Clifford
Many Americans recall hearing of the jumbo jet that crashed shortly after take-off from New York City’s John F. Kennedy International Airport, headed for Paris, in 1996.
TWA Flight 800 crashed into the Atlantic Ocean off the coast of Long Island, killing all 230 people aboard.
What many may not remember are the early reports of eyewitnesses who said they saw missiles in the vicinity of the plane before it fell out of the sky. It had been reported that the government had been conducting classified military maneuvers in the area that July evening.
A fisherman, tourists, a pilot in a nearby helicopter – actually hundreds of people – reportedly stepped forward saying they saw one, if not two, missiles flash in the sky before the plane exploded and crashed into the water.
The government explained that streak of light as the result of burning fuel during the crippled flight, but that theory didn’t explain the reported observations of people who recollected the streak of light originating at the surface or the horizon and traveling upward.
The National Transportation Safety Board immediately sent scores of investigators to figure out what happened, with the Federal Bureau of Investigation involved. Many families filed lawsuits to get answers. All of the suits were settled confidentially.
In 2000, the NTSB released its report. Its finding was that faulty wiring caused a spark, leading to a fuel tank explosion that caused the plane to crash. After the plane exploded and the nose disengaged from the fuselage, the NTSB reported that the plane then pitched up for 34 seconds or up to 16,000 feet.
But aviation experts, including a former United Airlines pilot, just don’t believe that, and they say the laws of physics are on their side.
Some of them filed lawsuits under the Freedom of Information Act, asking the government to produce all the records from the NTSB, the Central Intelligence Agency, and the National Security Agency to get all the information that never came out in court proceedings.
FOIA is the cornerstone upon which the authority for the request for public information generally is based. The NTSB has codified the rules regarding the public request for NTSB records at 49 C.F.R. sections 801-845. In addition, two sections of the United States Code (49 U.S.C. 1114 and 49 U.S.C. 1154) provide the means and limitations of obtaining NTSB information.
Under FOIA, an agency is required to make records available in a prompt manner if the request "reasonably describes" the records sought and is not merely a broad sweeping request lacking specificity, 5 U.S.C.A. sect. 552(a)(3)(A); Marks v. United States, 578 F.2d 261, 263(9th Cir. 1978).
In the TWA 800 case involving the release of information, one of the plaintiffs is an aviation expert who is a former Navy pilot and United Airlines captain. H. Ray Lahr, who also has an engineering degree, and two other aviation experts sued in federal court in 2003 for full records of documents, emails, charts, and computer simulations related to this crash.
He says the crash simply could not have happened the way the NTSB described it. Lahr, who has assisted the NTSB in seven previous airplane crash investigations, believes that the front third of the plane broke off when a missile, whether friendly-fire or terrorist-based, struck it.
With the summer Olympics just three days away and 1996 being a re-election year for President Bill Clinton, some contend that the government did not want to report that a commercial jet was shot out of the sky.
Lahr has set up a website that contains animations and explanations of his view of the events that occurred on the evening of July 17, 1996:
For the first time, a federal judge in California, on motions for summary judgment, recently granted access to some of the CIA records. Lahr v. National Transportation Safety Board, No. 2:03-cv-8023 C.D.Cal., decided Aug. 31 and Oct 4, 2006). In a 58-page opinion, U.S. District Judge A. Howard Matz granted access to the identities of eyewitnesses and further technical details.
Judge Matz recognized Lahr’s numerous reasons for believing that the government participated in a massive cover-up, such as the conflicting eyewitness testimony and the impossible "zoom climb" theory of the NTSB and CIA.
"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." Id.
Previously Lahr received some redacted documents, but the judge has ruled that he is allowed to view full documents, although certain materials, such as the NASA’s computer simulation, still are not discoverable for national security reasons.
The government has been withholding the documents based upon exemptions to FOIA. But the court held the government to a tougher standard in withholding certain documents and found that the public interest in knowing exactly what occurred or might have occurred that summer evening outweighed the government’s right to privacy, including the names of some FBI officials working on the case.
Lahr has told the press he doesn’t feel like a "conspiracist," but like it is his duty to get the truth, and he has spent more than $60,000 in trying to get the answers. John H. Clarke, an attorney for Lahr in Washington, D.C., said that the NTSB has spent close to $100 million investigating the accident, reportedly the most extensive investigation in the 40-year history of the board.
Interestingly, if, in fact, Lahr proves that fraudulent concealment occurred in the investigation of this crash, will that allow families to re-open their cases and add the government as a defendant? What if it is found that a governmental agency operated in bad faith, or if there is malfeasance?
What about those who did not sue at all? Will the statute of limitations be extended for them if they discovery from these once-privileged documents that a cover-up of sorts occurred after the crash and in the ensuing years?
These answers will be left to the brave lawyers who have been carrying on this expensive and complex litigation for years. In the meantime, this ruling opens the door to lawyers possibly obtaining critical documents in all sorts of governmental inquiries where the public has a right to know. That’s a democracy in action in the context of the civil justice system. We should all be very proud.