AircraftOwner Online

After a 15 year legal battle, a great victory has been won for the preservation, restoration and flying of vintage aircraft in America.   

It started in 1997 when I wrote to the FAA’s New England Aircraft Certification Office (ACO) with a simple Freedom of Information Act (FOIA) request. It was for the drawings for the tail of my 1936 Fairchild F-45 aircraft. I did this for the purpose of restoring the recently purchased F-45 project, which had been delivered without a tail. Little did I know that this simple request would ultimately result it five court cases, including one in front of the United States Supreme Court.  

When I made the original request, the FAA’s New England ACO began to block it immediately (as is their habit for all FOIA requests for vintage aircraft drawings). Literally going through phone books they sought a company, any company it seemed, named “Fairchild” willing to claim ownership of the F-45’s Type Certificate (TC). Once they scrounged up a Fairchild that claimed to be the legitimate owner of the Type Certificate, the FAA asked the company attorney if the would approve the release of its ATC data file.  

It’s A 75 Year Old Secret – And We’re Not Sharing It  

Almost universally, the FAA has come to rely on a particular exemption in FOIA law to withhold ATC data from the inquiring public. It’s called “Exemption 4” (5 U.S.C. § 552(b)(4)) covering Trade Secrets. Possibly applicable in cases of modern technology, they have also been applying it to ancient ATC files, claiming they, too, contain “Trade Secrets”.   

In the case of the F-45, never mind that in 1955 the original Fairchild company had specifically authorized, in writing, the release of ATC data “for use in making repairs or replacement parts for aircraft produced by Fairchild.”  This release notwithstanding, the FAA’s cohort in the denial process (the Fairchild company dug up to claim ownership of the ATC) said they had decided to rescind the predecessor’s letter of forty years before. That was all the New England ACO needed to hear. They denied the release of the data and related drawings. They said these 60+ year old files contained Trade Secrets and the Fairchild company did not want them released. Never mind that, out of the seventeen built, the last F-45 was made in 1937 and the current company had no commercial interest in the aircraft.  

Off To The U.S. Supreme Court

  I continued to pursue my case through the U.S. District Court and then to the Tenth Circuit court. Both cases were denied, not on the basis of the facts, but on legal technicalities regarding questions we did not raise.  In 2002, Brent Taylor of the Antique Airplane Association requested the same drawings for the purpose of preservation. Without going into the lengthy details of his case, it went all the way to the United States Supreme Court, ironically not on the merits of the records request itself, but on the question of whether or not Brent was a “virtual representative” of me because, among other things, I am a Lifetime Member of the Antique Airplane Association!   

Remanded And Then The Order: Release The Drawings  

The Supreme Court had taken the case because they wanted to more clearly define what “virtual representation” consisted of. After making that clear, the Supreme Court remanded the case down to the lower court where the facts were finally vetted. The case has now finally been decided – in Summary Judgment no less – on its merits. [Summary Judgment essentially means the conclusions are so obvious that there is no reason to go to trial].  

The result was a huge victory of the preservation of, and access to, vintage aircraft type certificate data. The court told the FAA that:  

1. A written letter authorizing the release of type certificate data was in fact valid authorization for the release of type certificate data. 
2. The Fairchild corporation claiming to be the predecessor of the first could not, in any event, restore the materials to trade secret status.  

And Now For The Most Important Part:
Old Approved Type Certificate Drawings Are Not Trade Secrets! 

  For all of us, the Court’s third finding was the most critical and far reaching as it appears to have completely eradicated the FAA’s linchpin reason for not releasing vintage type certificate data: FOIA Exemption 4 – Trade Secrets.   

            3. The Court opinion reads exactly this: “Consequently, the court concludes that the F-45 type certification materials are not commercially valuable, and thus do not constitute trade secrets under Exemption 4.”  

Aviatrices and aviators, that’s huge! No longer can the FAA claim that ancient type certificate data are Trade Secrets.  This case has been won. Now we should finally be able get access to critical and historic information. That is, if the FAA does not destroy it first.  

Since the first Approved Type Certificate was issued in March of 1927, ATC data has chronicled, in great detail, the very development of civil aircraft in America. These historic files document the fabric of American innovation.  The need to preserve these detailed records transcends all other interests. But we need to act fast before the FAA destroys it. Trust me, they will. Our work to stop them – and save this critical part of our aviation history – has just begun. More on that subject later.            

Sincerely,

Greg Herrick

  PS:  You may read the Court’s Opinion by clicking on this Weblink: The Court's Opinion.
Attorney Mike Pangia chronicled the case in an article he wrote before this final verdict was handed down. You may read his article here: Attorney Mike Pangia's earlier article.