Court says old type certificates not ‘trade secrets’

Ruling a long-sought victory for aircraft restorers

February 2, 2011

Brent Taylor hopes that years of court battles he waged in a bid to keep antique aircraft flying are finally over.

He’ll know for sure in about two months.

Meanwhile, Taylor and other antique aircraft devotees are cheering a Jan. 19 Federal District Court decision that struck down an argument that the FAA had used in “blanket refusals” to make old aircraft type certificate information available to antique aircraft owners and restorers.  

That argument—an assertion that releasing the information would reveal trade secrets—fell when Federal District Judge Ricardo M. Urbina granted a motion for summary judgment by Taylor, the Ottumwa, Iowa-based executive director of the Antique Airplane Association, in a Freedom of Information Act (FOIA) lawsuit over access to design data and drawings for the 1930s-vintage Fairchild F-45.

At first, Taylor was a reluctant litigator. Taylor said he had worked cooperatively for years with the FAA on an ad hoc committee focused on gaining access to abandoned type certificates. The shared goal was to keep old aircraft flying—so he was surprised when he became aware that the FAA was simultaneously blocking some FOIA requests.

He focused his FOIA request on the F-45 after learning that the FAA had denied F-45 information to Greg Herrick, a member of his association who had bought a “basket case” example of the airplane and wanted to restore it.

“He wanted to build a tail, to the type certificate, so the airplane can be licensable and safe,” Taylor said.

But the FAA invoked the trade-secret argument in the case of the four-seat, single-radial-engine equipped, low-wing airplane. Trade secrets are a class of information exempt from public disclosure under the FOIA.

Herrick’s wasn’t an isolated case. By 2001 Taylor had already heard from other members of the Antique Airplane Association “that they were being blanket refused access to drawings,” he told AOPA in an interview.

“I had about a dozen members within a span of a few months start coming forward saying that they had filed requests under the Freedom of Information Act, and they were all denied basically on the trade secret thing,” he said.

According to the case record, Taylor filed his FOIA request in August 2002. Six months later, after receiving no response from the FAA, he sued in federal court. He was represented by Michael J. Pangia, a former FAA legal counsel, who chronicled the case in an article on the antique aircraft group’s website.

At first the FAA said it had no record of receiving Taylor’s FOIA request—a complication which stayed court proceedings until November of that year, when the FAA turned him down.

In 2004 Fairchild Aircraft Co.’s corporate successor, no longer in the aircraft manufacturing business, joined the FAA in opposing Taylor. The company claimed that the previous denials of Herrick’s 1997 FOIA request should govern in Taylor’s case. That so-called virtual representation assertion prevailed through appeals until June 12, 2008.

Then, the U.S. Supreme Court vacated the decisions and sent Taylor’s case back for further review, although to get to that point, Taylor had to face down possible liability for more than $90,000 in Fairchild’s legal costs, according to Pangia’s article.

After the Supreme Court ruling, Taylor says he was offered a chance to buy the type certificate documents for $450,000. He turned it down.

On Jan. 19, 2011, Urbina, a judge in the U.S. District Court for the District of Columbia, ruled that the trade secrecy claim failed on two points: The aircraft plans were not secret—Fairchild had authorized their release to owners for a brief period in 1955—nor did they possess commercial value to Fairchild, a requirement of the trade-secret argument.

Urbina also rejected the FAA argument that there was residual commercial value in the F-45’s obsolete technology because an owner could not restore an F-45 without the data and drawings.

“In sum, the FAA has not demonstrated that the materials sought by the plaintiff are secret and commercially valuable, as necessary to demonstrate that they are trade secrets protected from disclosure by Exemption 4,” Urbina wrote.

The FAA had 60 days after the ruling to file an appeal.

Taylor said he doesn’t expect one—and he hailed the ruling in a letter posted on his association’s website.

“It's been a long and expensive road, but if it helps to ‘keep the Antiques Flying’ then it will have been well worth it,” he wrote.