By Andy Pasztor

 

U.S. aviation officials face courtroom challenges regarding the confidentiality of Boeing Co. documents detailing safety fixes to the company's 737 MAX jets.

The Federal Aviation Administration and the Justice Department have told a federal judge the public isn't entitled to see thousands of pages of such company documents. A passenger-advocacy group is stepping up legal maneuvers objecting to those arguments.

The legal skirmishes in Washington, D.C., district court come in the wake of comments last week by FAA chief Steve Dickson, emphasizing the agency's transparency in permitting the MAX fleet back in the air. The court papers, however, illustrate formidable obstacles to public access to underlying Boeing technical reports and information.

Two crashes in less than five months took 346 lives and sparked a 20-month global grounding of MAX jets. The documents at issue-including safety analyses, engineering studies and flight-test procedures and results-were prepared by Boeing and then provided to the FAA as part of the effort to return the fleet to service.

Flyers Rights Education Fund, a national passenger-advocacy group, filed a lawsuit in October 2019 seeking access to some 10,000 pages of Boeing documents intended to demonstrate the safety of proposed hardware and software fixes.

In its filings, Flyers Rights has argued that keeping Boeing's information from the public violates the law and contradicts the FAA's assertions about transparency. After repeatedly making pledges to be open about its decision making, the filings assert, FAA leaders instead opted "to hide from the public the minimum information needed to understand what happened" to prompt the FAA to move toward rescinding its grounding order.

Flyers Rights is asking for a swift ruling on its arguments.

Boeing, which is not a party to the lawsuit seeking documents, declined to comment.

The Justice Department's latest filing last Wednesday asserts that Boeing's engineering and safety analyses largely consist of proprietary information that is strictly exempt from public release under freedom-of-information statutes. The FAA, according to the filings, previously "provided Boeing both implicit and explicit assurances that it would treat the disputed information as confidential."

A spokeswoman for the U.S. Attorney's office for Washington, D.C., declined to comment.

The government also has argued, without elaborating, that releasing the disputed documents could chill future communications between the FAA and plane makers.

Last week's filing coincided with a press conference by Mr. Dickson about the safety of the MAX. The FAA chief told reporters on Wednesday that the agency's process in approving the fixes "has been extremely transparent, it's been open and collaborative" with outside experts and regulators. "I'm proud of that," he added.

The filing also indicated that when the plane maker first provided many of the documents to the FAA, the transmittal letters for each submission said they were turned over on a confidential basis.

Boeing also expected that in general, the FAA wouldn't permanently retain any company-generated documents submitted to support certification of new aircraft or vetting of existing models such as the MAX, according to government filings.

The company's transmittal letters, according to the filings and a sworn written statement from a Boeing employee filed by the government, explicitly laid out that "the data provided should be returned to Boeing immediately following use by the FAA, including any copies."

According to the government, Boeing's letters also said the company "does not authorize the FAA to retain any portion of the materials."

The FAA for months has been embroiled in controversy over its efforts to safeguard the confidentiality of MAX safety documents.

In recent weeks, nearly 1,000 relatives and friends of passengers who perished when Ethiopian Airlines Flight 302 nosedived shortly after takeoff from Addis Ababa wrote a letter demanding that the FAA release additional information about the plane's original certification and safety.

The group also sent a separate letter urging the U.S. National Transportation Safety Board to release some of the same material.

An NTSB spokesman has said the board is restricted from releasing material until the end of ongoing probes delving into MAX crashes.

Throughout the process, the FAA has argued it released a large volume of information, including outside studies and recommendations. But Boeing's original reports and data, the agency has maintained, must remain off limits to the public due to longstanding legal restrictions and agency practices. Congressional investigators have gathered, but not publicly released, some of the underlying Boeing documents, according to people familiar with the details.

As part of a different lawsuit pending in federal district court in Chicago, lawyers representing many of the Ethiopian crash victims got a big boost on Monday in their efforts to obtain Boeing documents. Rejecting most of Boeing's objections, a magistrate ordered the plane maker to turn over extensive internal documents related to development of the MAX, including safety data, details of board deliberations and personnel actions stemming from the plane's accidents.

 

Write to Andy Pasztor at Andy.Pasztor@WSJ.com

 

(END) Dow Jones Newswires

November 24, 2020 13:59 ET (18:59 GMT)

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