TC Data Access: Legislation Likely Needed Despite Court Victory
March 10, 2011 — A long legal battle to access Type Certification (TC) data related to the Farchild F-45 has been won by Brent Taylor, executive director of the Antique Aircraft Association. The FAA announced it would not appeal a January court ruling that requires the FAA to release the data to Taylor. The fight began with aircraft restorer Greg Herrick, who sought the information in order to repair an F-45 he owns. The FAA fought the data release, claiming it was a trade secret even though the company went bankrupt in 1955. The Fairchild case had unique circumstances surrounding the ownership of the TC and it is unclear if the FAA will release other TC data due to the ruling. Read more
The Fairchild F-45 is a 1930s airplane manufactured by the long-defunct Fairchild Aircraft Corporation. It is a four-seat, low-wing, partially fabric-covered airplane powered by a Wright radial engine that is actually a contemporary of the Model A Ford. Unlike the Model A, the airplane achieved little or no financial success.
Gregg Herrick was looking to fix the tail surfaces on his F-45 and filed a Freedom of Information Act (FOIA) request to the FAA in 1997, according to Michael Pangia, who represented Taylor in a separate FOIA request for the F-45 data and chronicled his involvement in the case in a 2008 article.
Herrick’s argument was that a 1955 letter from the owner of the Fairchild Aircraft Division of the Fairchild
Engine & Airplane Corporation that went out of business around that time relinquished any claim to trade secrecy. Because of this letter, Herrick argued, the FAA had no reason to protect the interests of Fairchild. However, in the course of seeking the original data Herrick stumbled across a real estate company named Fairchild that incorporated in 1990.
In the process of making inquiries with Fairchild about whether they knew of or still owned the TC, Pangia suggests that “someone” at Fairchild felt the TC had commercial value and asked the FAA to fight the FOIA request even though evidence of ownership of the TC by the new Fairchild was quite thin.
The Tenth Circuit court agreed with Herrick that the 1955 letter ended secrecy of the requested materials, but because Herrick didn’t prove that it was impossible for secrecy of public documents to be “re-established,” it is assumed that it can be. Therefore, legal options still remained for Fairchild and the FAA.
Fairchild eventually dropped their involvement in the suit but the FAA continued to fight the release until this month. The unusual circumstances of the case may make it difficult for other FOIA requests of TC data for other airframes to be granted by the FAA unless the TC holder has previously made the data public.
EAA has been working for years to pass legislation that is currently in both House and Senate versions of the FAA Reauthorization bill that would allow the FAA to release data for vintage aircraft when the TC is no longer being supported by the manufacturer or subsequent TC holder. Such data releases would not require specific authorization by current or former TC holders provided that it is in the interest of maintaining the safety of existing aircraft.