Wednesday, October 1, 2008

U.S. DOT "On-Time" Records Of Final Flights Performed By 9/11 Aircraft Apparently Unavailable

The following is correspondence received from the U.S. Department of Transportation's Bureau of Transportation Statistics and the Office of Airline Information regarding requested information of the final flights of the 4 aircraft reportedly involved in the terrorist attacks of September 11, 2001. Of particular interest is the final "on-time" information for American Airlines flight 77 (N644AA) and United Airlines flight 93 (N591UA). Final "on-time" information for each aircraft could eventually be compared with similar information contained by the Flight Data Recorders (FDRs) for each aircraft in order to better determine the authenticity of the information attributed to each FDR. The NTSB refuses to provide unencrypted information from these FDRs, which would also include final "on-time" information for each aircraft for flights performed before September 11, 2001.

----- Original Message -----
Sent: Tuesday, July 22, 2008 12:13 PM
Subject: RE: FOIA Request

I received the following response from our Office of Airline Information stating that the agency records indicate that:

“There were no flights in 2001 (August 26 to September 11, 2001) with tail numbers N591UA or N644AA.”

Robert A. Monniere


RITA's Office of the Chief Counsel

----- Original Message -----
Sent: Thursday, July 24, 2008 6:40 AM
Subject: RE: Clarification of FOIA Response

Dear Mr. Monaghan:

A BTS programmer conducted a search of the entire on-time data base (the only data base which captures flight information by tail number) for the tail numbers referenced in your request.

We sent you the results of the data search. Please be advised that only domestic scheduled passenger flights are reported in this data base. Charter flights and international flights are not reported. Generally, the major airlines utilize their larger aircraft on the longer international flight segments.

Also, the air carriers capture the times needed for reporting purposes by on board computers. If these planes and computers were destroyed in the events of 9-11, I am not sure if the airlines had the capability to capture the necessary data.

Bernie Stankus


From: Aidan Monaghan []
Sent: Fri 6/6/2008 9:31 AM
To: Monniere, Robert
Subject: FOIA Request

Bob Monniere
Attorney Advisor
Research and Innovative Technology Administration
1200 New Jersey Avenue, SE
E35-330, RTC
Washington, DC 20590

Re: Freedom of Information Act Request

Dear Mr. Monniere:

I respectfully request copies of the following records:

The final 14 days of flight history for the following commercial aircraft that were federally registered as of 9/11/2001, including dates and times of all departures and arrivals:

- American Airlines flight 77 (N644AA) and United Airlines flight 93 (N591UA)

Disclosure of the requested information to me is not in my commercial interest.

Thank you for your consideration of this request.


Aidan Monaghan


The National Transportation Safety Board refuses to provide unencrypted information generated by the FDRs contained by American Airlines flight 77 (N644AA) and United Airlines flight 93 (N591UA).

Dear Mr. Monaghan:

I write in response to your letter dated May 15, 2008, in which you appealed the response ofthe National Transportation Safety Board's FOIA Officer to your FOrA request for "copies of documentation ... which reveal specific data contained within the Solid State Flight Data Recorders (SSFDR's) recovered from ... American Airlines flight 77 and United Airlines flight 93." The Safety Board's FOIA Officer responded to your request on May 9,2008, and provided all FDR records that the Safety Board has with regard to American Airlines flight 77 and United Airlines flight 93.

Your appeal asserts that the Safety Board is obligated to convert numerous hours of raw FDR data, which the Safety Board provided to you in its response to your request, into tabular files and plots. Your appeal cites 5 U.S.C. § 552(a)(3)(B), which states that agencies should provide requested records "in any form or format requested by the person if the record is readily reproducible by the agency in that form or format." I have determined that the Safety Board must deny your appeal, to the extent that you seek tabular files and plots that include dates and times within the FDR recordings for flights 77 and 93. Providing you with these files would require the Safety Board to create new records in response to your request. In addition, as explained below, to the extent that you seek these records pursuant to § 552(a)(3)(B), please note that these records are not readily reproducible in the format in which you seek them.

First, please note that the FOIA does not require agencies to create records in response to a request or query. See, e.g., Krohn v. Dep't of Iustice, 628 F.2d 195, 197-98 (D.C. Cir. 1980); Sakamoto v. EPA, 443 F. Supp. 2d 1182, 1189 (N.D. Cal. 2006); Hudgins v. IRS, 620 F. Supp. 19,21 (D.D.C. 1985). Furthermore, courts have also held that FOIA requesters may not utilize the FOIA has a means of forcing an agency to complete certain work. See Niagara Mohawk Power Corp. v. U.S. Dep't of Energy, No. 95-0952, transcript at 10 (D.D.C. Feb. 23, 1996) (bench order), vacated & remanded on other grounds, 169 F.3d 16 (D.C. Cir. 1999). If you seek tabular data and plots containing various parameters from the hours of the FDR recordings that precede the accident flights, you must import the raw data that the Safety Board has given you into a tabular data file using specialized software. For your reference, the Safety Board has previously used a software program entitled "Readout and Playback Software (RAPS)," from Flightscape, Inc. This program uses algorithms and equations to convert the data from the recorder's binary format to the text format files that you received in Excel spreadsheets.

Flightscape offers such FDR software programs commercially, under a licensing agreement; under the Safety Board's own licensing agreement with Flightscape, we are not at liberty to distribute a copy of our software to you. You may contact Flightscape at:

Flightscape, Inc.
36 Antares Drive Suite 850
Ottawa, Ontario, Canada K2E 7W5
Tel: +011 (613) 225-0070

In addition, while the FOIA does require that agencies"provide me requested [record] in any form or format requested by the person if the record is readily reproducible in that form or format," 5 U.S.C. § 552(a)(3)(B), courts have held that this provision does not require agencies to engage in extraordinary efforts or procure costly resources in order to reproduce a record in a specific format. Landmark Legal Found. V. EPA, 272 F. Supp. 2d 59, 63 (D.D.C. 2003) (concluding that the agency had not violated the FOIA's "readily reproducible" provision by failing to retain electronic copies of e-mail records that the agency had retained in paper form only, because "the agency may keep its files in a manner that best suits its needs"); see also Chamberlain v. Dep't of Justice, 957 F. Supp. 292, 296 (D.D.C. 1997) (holding that the agency had complied with the FOIA by offering to make visicorder charts, as well as all other original and releasable material that might be damaged by photocopying, available for review, rather than providing copies of the charts); Martin & Merrell, Inc. v. U.S. Customs Serv., 657 F. Supp. 733, 734 (S.D. Fla. 1986) (stating that the FOIA "in no way contemplates that agencies, in providing information to the public, should invest in the most sophisticated and expensive form of technology"). My staff has corresponded with the Vehicle Recorders Division within the Safety Board's Office of Research and Engineering, and confirmed that converting the existing raw FDR data from the numerous hours that preceded flights 77 and 93 would be extremely timeconsuming. In addition, isolating the times and providing the data in tabular files and plots would essentially involve creating a new record, as producing the records in the format that you suggest would require an exercise of a vehicle recorders specialist's expertise and judgment. Overall, I have carefully reviewed your appeal and determined that the FOIA does not require the Safety Board to convert the raw data from these FDR recordings into another format.

Based on the foregoing, I have determined that your appeal must be denied, to the extent that it seeks tabular data files and plots. This response constitutes the final action from the National Transportation Safety Board on your appeal. The Freedom of Information Act, 5

U.S.C. § 552, provides for judicial review ofthis determination.


Joseph G. Osterman

Managing Director


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