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EPIC v. FAA, Drone Advisory Committee RTCA, & more.
EPIC alleges, “Although the DAC has been regularly meeting and advising the FAA since September 2016, it has conducted much of its work in secret and released only a small number of committee records.” They are suing to obtain records not released and also to open the DAC’s sub-committees to public access.
EPIC has sued the FAA/DOT at least 3 other times over issues surrounding drones according to my drone lawsuit/litigation database. EPIC currently has another case pending before the D.C. Circuit Court of Appeals which has consolidated with the 4th Taylor v. FAA case.
1. This is an action under the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. 2; the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551–706; and the Declaratory Judgment Act, 28 U.S.C. § 2201(a), for injunctive and other appropriate relief to compel the Drone Advisory Committee (“DAC” or “Committee”) to comply with its transparency obligations.
2. Plaintiff Electronic Privacy Information Center (“EPIC”) specifically challenges (a) Defendants’ failure to make advisory committee meetings “open to the public,” as required by 5 U.S.C. app. 2 § 10(a)(1); and (b) Defendants’ failure to make “available for public inspection and copying” the “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents” of the DAC, as required by 5 U.S.C. app. 2 § 10(b).
3. Access to these nonpublic meetings and records would reveal how, if at all, the Drone Advisory Committee has addressed the threat that the deployment of Unmanned Aerial Vehicles (“UAVs” or “aerial drones” or simply “drones”) would pose to the privacy rights of persons in the United States.
4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331, 5 U.S.C. § 702, and 5 U.S.C. § 704. This Court has personal jurisdiction over Defendants.
6. Plaintiff EPIC is a nonprofit organization, incorporated in Washington, D.C., established in 1994 to focus public attention on emerging privacy and civil liberties issues. Central to EPIC’s mission is oversight and analysis of government activities that impact individual privacy. EPIC is a membership organization. The Members of EPIC’s Advisory Board include distinguished experts in law, technology, and public policy.
8. EPIC filed a petition with the FAA in 2012—joined by over 100 organizations, experts, and members of the public—demanding that the agency issue privacy regulations to safeguard the interests of the American public.2 EPIC has also twice brought suit against the FAA to enforce the agency’s obligation to establish privacy protections against drone surveillance. EPIC first sued the FAA when the agency denied EPIC’s 2012 petition and failed to address privacy issues in its first drone rulemaking. EPIC v. FAA, 821 F.3d 39 (D.C. Cir. 2016). EPIC subsequently filed suit to challenge the FAA’s final rule on small drones, a case which is currently pending before the U.S. Court of Appeals for the D.C. Circuit. EPIC v. FAA, No. 16- 1297 (D.C. Cir. argued Jan. 25, 2018).
9. EPIC recently filed a Freedom of Information Act (“FOIA”) suit against the Department of Homeland Security to obtain the agency’s drone policies, reports, and procedures. EPIC v. DHS, No. 18-545 (D.D.C. filed Mar. 8, 2018). In 2016, EPIC obtained key documents through a FOIA request concerning the work of the FAA’s Drone Registration Task Force. And in 2015, an EPIC FOIA case identified significant privacy and maintenance problems with the Department of Defense JLENS program, in which the Department conducted domestic surveillance using blimp-mounted radar and video equipment. EPIC v. Dep’t of the Army, No. 14–776 (D.D.C. filed May 6, 2014). After a JLENS surveillance blimp broke free, downed multiple power lines, and crash-landed in Pennsylvania, the program was eventually cancelled.
10. EPIC maintains one of the most popular privacy websites in the world, https://epic.org, which provides EPIC’s members and the public with access to current information about emerging privacy and civil liberties issues. EPIC’s website includes extensive information about the privacy risks arising from drone surveillance. EPIC frequently posts documents obtained under the FOIA and other open government statutes in order to educate the public about the privacy implications of government programs and activities.
11. Defendant Drone Advisory Committee (“DAC”) is an advisory committee of the United States government within the meaning of 5 U.S.C. app. 2 § 3(2). Ex. 1 at 3.5 The DAC was established and is utilized by the Federal Aviation Administration (“FAA”) and the United States Department of Transportation (“DOT”). The DAC includes a Drone Advisory Subcommittee (“DACSC” or “Subcommittee”) and at least three task groups: Task Group 1, Task Group 2, and Task Group 3 (collectively, “DAC Task Groups” or “Task Groups”). The DAC, the DACSC, and the DAC Task Groups are all under and part of the RTCA Advisory Committee (“RTCA”).
12. Defendant RTCA Advisory Committee is an advisory committee of the United States government within the meaning of 5 U.S.C. app. 2 § 3(2). The RTCA is utilized—and was established as a federal advisory committee—by both the FAA and the DOT. The RTCA is also an umbrella organization comprising at least 26 constituent advisory committees, including the DAC.
13. Defendant Federal Aviation Administration is an agency within the meaning of 5 U.S.C. § 701, 5 U.S.C. § 551, and 5 U.S.C. app. 2 § 3(3). The FAA is also a sub-agency of the DOT.
14. Defendant Daniel K. Elwell is the Acting Administrator of the FAA. Mr. Elwell is also the Designated Federal Officer (“DFO”) of the DAC and the RTCA within the meaning of 5 U.S.C. app. 2 § 10(e)–(f).
15. Defendant United States Department of Transportation is an agency within the meaning of 5 U.S.C. § 701, 5 U.S.C. § 551, and 5 U.S.C. app. 2 § 3(3).
16. Defendant David W. Freeman is the Committee Management Officer (“CMO”) of the DOT within the meaning of 5 U.S.C. app. 2 § 8(b). Mr. Freeman is responsible for controlling and supervising the DAC, the RTCA, and the DFO of both committees (currently Mr. Elwell). Id.
17. The integration of drones into the National Airspace System will adversely affect millions of Americans. Reports of drones threatening the safety of aircraft, civilians, first responders, and law enforcement officers—as well as reports of surveillance by drones on private property and “drone stalking”—are increasing.
18. Many operators enable their drones to surreptitiously observe, record, or otherwise collect information from individuals without their knowledge or consent, even through walls or from thousands of feet in the air.
20. Drone use and drone sales are rapidly growing. U.S. drone sales more than doubled between 2016 and 2017,12 and commercial drones are representing an ever-larger share of the worldwide drone market.13 Meanwhile, President Trump has taken steps to effect a “quick and dramatic expansion of drone use” in the NAS.14 Unwelcome Visit, N.Y. Times (Jan. 27, 2016), https://www.nytimes.com/2016/01/28/style/ neighbors-drones-invade-privacy.html.
21. Despite these alarming trends, the FAA has refused to promulgate generally applicable regulations to address the privacy risks posed by drones—even ignoring a Congressional command to do so in the FAA Modernization and Reform Act of 2012.
22. The Drone Advisory Committee, which directly advises the FAA on drone deployment, has the obligation to present to the FAA proposals and recommendations to address widespread and obvious public concerns about the impending risks of drone surveillance in the United States.
23. Yet there is no evidence that the DAC has fulfilled its essential responsibility to assess these risks to the public interest. References to privacy are extremely sparse in the few public DAC records, while the vast majority of DAC records and subcommittee meetings remain closed to the public in violation of the FACA.
25. The DAC was in fact “established” by the FAA on or before August 31, 2016. Ex. 3.17 The DAC was “formed under the RTCA federal advisory committee.” Id.
27. As of March 2018, the DAC was comprised of thirty-two members. Ex. 14.19 Eighteen Committee members are affiliated with corporations or organizations engaged in the design, manufacture, operation, or management of drones. Id. Nine members are affiliated with traditional aircraft operators, airport authorities, or associations of aviation professionals. Id. Two members are university-affiliated researchers, and three members are public officials (only one of whom is elected). Id. No privacy, consumer safety, or other general public interest groups are represented on the DAC.
28. The DAC Terms of Reference—which the FAA “issued,” Ex. 10 at 420—charge the DAC with providing an “open venue” for Committee members to “identify and recommend a single, consensus-based set of resolutions for issues regarding the efficiency and safety of integrating UAS [unmanned aircraft systems] into the NAS and to develop recommendations to address those issues and challenges.” Ex. 1 at 2.
29. According to the FAA, DAC members are to “discuss key issues and challenges associated with integrating unmanned aircraft in the world’s busiest and most complicated airspace system.” Ex. 2. However, the Committee is to “conduct more detailed business through a subcommittee and various task groups that will help the FAA prioritize its activities, including the development of future regulations and policies.” Id.
30. The DAC Subcommittee was established at some point between the first full DAC meeting (September 16, 2016), Ex. 4, and the second full DAC meeting (January 31, 2017), Ex. 5.21 The date of the Subcommittee’s first meeting, as with nearly all DACSC proceedings, was not announced and is not publicly known.
31. The DACSC Terms of Reference—which the FAA “issued,” Ex. 10 at 4—state that the Subcommittee’s role is to “support” the DAC, to “present findings to DAC,” and to “[f]orward recommendations and other deliverables to DAC for consideration.” Ex. 6 at 1, 3.22 However, contrary to the DACSC Terms of Reference, FAA officials have repeatedly circumvented the full DAC and worked directly with the Subcommittee.
33. Moreover, the DAC’s Designated Federal Officer—previously Acting FAA Deputy Administrator Victoria B. Wassmer, now Acting Administrator Elwell—is required by both the RTCA Charter and the FACA to be intimately involved in the proceedings of the DACSC. The “DFO or alternate” must “[c]all, attend, and adjourn all the committee/ subcommittee meetings”; “[a]pprove all committee/subcommittee agendas”; and “[c]hair meetings when directed to do so by the FAA Administrator.” Ex. 13 at 2–3;25 see also 5 U.S.C. app. 2 § 10(e)–(f).
34. The DAC also includes at least three “FAA-approved Task Groups,” each of which must “have a specific, limited charter” that is “approved by the FAA Administrator.” Ex. 1 at 2. According to the FAA, the agency’s “traditional way of providing tasking” to Task Groups is to “finalize and approve the tasking statement and forward it to the [Committee] to execute.” Ex. 5 at 10.
37. Task Group 3 was established sometime between the second full DAC meeting (January 31, 2017), Ex. 5, and the third full DAC meeting (May 3, 2017), Ex. 10. The FAA instructed Task Group 3 to “develop recommendations as to the UAS community’s preferred method(s) for 26 Tasking Statement from Victoria B. Wassmer, Acting Deputy Adm’r, FAA, to DAC Task Group 1 (Jan. 31, 2017).
38. The DACSC Terms of Reference nominally require the Task Groups to perform their work “at the direction of the DACSC,” Ex. 6 at 3, rather than at the direction of FAA officials. In October 2017, Mr. Elwell, then the FAA Deputy Administrator, explained to the Washington Post: “If we [the FAA] meddle, if we get in there, they’re not advising us.” Ex. 20.29 Nevertheless, FAA officials have personally directed, guided, participated in, and received the work and recommendations of the Task Groups.
39. For example, in early 2017, Acting Deputy Administrator Wassmer “issued” the detailed tasking statements for all three Task Groups. Ex. 10 at 4. The tasking statements included factfinding assignments for each Task Group, topics that each Task Group should advise on, and deadlines by which each Task Group should deliver its recommendations and reports. See Ex. 7; Ex. 8; Ex. 9. As Wassmer made clear to the DAC, “tasking statements from the FAA should guide the work of the DAC, DACSC, and TGs.” Ex. 10 at 4.
40. Wassmer and Acting Administrator Elwell also personally attended DAC meetings at which the Task Groups delivered substantive recommendations and reports. See, e.g., Ex. 10 at 2, 9–17; Ex. 11 at 1, 3–9; Ex. 12 at 2, 8–18.
41. And because the Task Groups constitute subcommittees of the DAC, Wassmer and Elwell were (or are) required to be intimately involved in the proceedings of the Task Groups in their capacity as Designated Federal Officer. Under the RTCA Charter, the “DFO or alternate” must “[c]all, attend, and adjourn all the committee/ subcommittee meetings”; “[a]pprove all committee/subcommittee agendas”; and “[c]hair meetings when directed to do so by the FAA Administrator.” Ex. 13 at 2–3; see also 5 U.S.C. app. 2 § 10(e)–(f).
42. The DAC, according its Terms of Reference, must conduct its work in the “open, transparent venue of a federal advisory committee (FAC). As with all FACs, the Drone Advisory Committee (DAC) will be designed to: ensure transparency, include broad and balanced representation across the industry, encourage innovation and remain consistent with US anti-trust laws.” Ex. 1 at 1.
43. Under the FACA, the meetings of each advisory committee—defined as any “committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof” which is “established or utilized” by an agency—“shall be open to the public.” 5 U.S.C. app. 2 §§ 3(2), 10(a)(1).
open to the public, except as provided by section 10(d) of the FACA and applicable regulations. Meetings will be announced in the Federal Register at least 15 days before each meeting, except in emergencies.” Ex. 13 at 3.
45. The DAC Terms of Reference further underscore that “The DAC functions as a Federal advisory committee with meetings that are open to the public, unless otherwise noted as authorized by section 10(d) of the FACA and applicable regulations . . . .” Ex. 1 at 3.
46. Under the FACA, “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist.” 5 U.S.C. app. 2 § 10(b).
47. The RTCA Charter confirms that “[s]ubject to the Freedom of Information Act, 5 U.S.C. § 552, records, reports, transcripts, minutes, or meeting summaries, and other materials presented to or prepared for the RTCA Advisory Committee are available for public inspection.” Ex. 13 at 4.
48. The DAC Terms of Reference state that “[i]n accordance with the Federal Advisory Committee Act, meeting summaries and related information will be available to the public via RTCA’s website. Documents undergoing final review can be obtained by contacting RTCA.” Ex. 1 at 6.
49. The RTCA Charter also states that the “records of the committee, formally and informally established subcommittees, or other work or task subgroup of the subcommittee, shall be handled in accordance with the General Records Schedule 6.2, or other approved agency records disposition schedule.” Id.
50. General Records Schedule 6.2 “covers Federal records created or received by Federal advisory committees and their subgroups pursuant to the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and records related to the management of these committees by their sponsoring agencies or departments.” Nat’l Archives & Records Admin., General Records Schedule 6.2: Federal Advisory Committee Records 130 (Sep. 2016), Ex. 15.
51. General Records Schedule 6.2 requires the “[p]ermanent” preservation of “records related to the establishment of the committee”; “records related to committee membership”; “records of committee meetings and hearings”; “records related to committee findings and recommendations”; “records created by committee members,” including “correspondence documenting discussions, decisions, or actions related to the work of the committee”; “records related to research collected or created by the committee”; “documentation of advisory committee subcommittees”; “records that document the activities of subcommittees that support their reports and recommendations to the chartered or parent committee.” Id. at 130–32.
52. The General Services Administration, which is “responsible for all matters relating to advisory committees,” and “prescribe[s] administrative guidelines and management controls applicable to advisory committees,” 5 U.S.C. app. 2 § 7, instructs that: “Whether subcommittees are open to the public or not, the agency must . . . [c]omply with recordkeeping requirements (i.e., minutes)” and “[a]llow public access to subcommittee records.” Federal Advisory Committee Act Training Course 192 (2017), Ex 16.
53. FACA regulations also dictate that a committee or agency “may not require members of the public or other interested parties to file requests for non-exempt advisory committee records under the request and review process established by section 552(a)(3) of FOIA.” 41 C.F.R. § 102-3.170.
54. On September 16, 2016, the DAC held its first full Committee meeting in Washington, D.C. Ex. 4. Acting Deputy Administrator Wassmer, then the Committee’s DFO, attended the meeting and delivered remarks. Id. at 1.
57. During the September 2016 meeting, the DAC identified as an action item: “Establish a WG to describe the privacy concerns, and to identify the respective roles and responsibilities for dealing with privacy concerns across local, state, regional and federal entities.” However, there is no public record of the DAC ever forming a working group focused on privacy.
58. During the same meeting, the DAC also identified “[e]stablishing a standing DAC Subcommittee,” “[e]stablish[ing] a task group” as action items. Ex. 4 at 2.
59. Between the DAC’s September 2016 and January 2017 meetings, the DACSC, Task Group 1, and Task Group 2 were formed and began engaging in official Committee business. See Ex. 5 at 2–7.
60. Although members of the DACSC and the Task Groups met and conferred during this period, see id., Defendants failed to publicly notice or announce any such meetings.
61. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection, apart from limited information presented to the DAC at its January 2017 meeting.
62. On January 31, 2017, the DAC held its second full Committee meeting in Reno, Nevada. Ex. 5. Acting Deputy Administrator Wassmer, then the Committee’s DFO, attended the meeting and delivered remarks. Id. at 1.
63. The DACSC, Task Group 1, and Task Group 2 each delivered a progress report to the DAC at the January 2017 meeting. Id. at 2–7. Task Group 1 and Task Group 2 discussed their substantive recommendations to the FAA. Id. at 3–7. The DAC also “approved the DACSC to go through the process of creating TG3 [Task Group 3]” based on the tasking statement issued by the FAA. Id. at 10.
64. According to the publicly available records of the January 2017 meeting, the privacy implications of drones were referenced only once in passing.
65. Between the DAC’s January 2017 and May 2017 meetings, the DACSC, Task Group 1, and Task Group 2 continued engaging in official Committee business. See Ex. 10 at 8–14. Task Group 3 was also formed during this period and began engaging in official Committee business. See id. at 14–16.
66. Although members of the DACSC and the Task Groups met and conferred during this period, see Ex. 10 at 8–16, Defendants failed to publicly notice or announce any such meetings.
67. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection, apart from limited information presented to the DAC at its May 2017 meeting.
68. On May 3, 2017, the DAC held its third full Committee meeting in Herndon, Virginia. Ex. 10. Acting Deputy Administrator Wassmer, then the Committee’s DFO, attended the meeting and delivered remarks. Id. at 1.
69. The DACSC and each of the Task Groups delivered a progress report to the DAC at the May 2017 meeting. Id. at 8–16. Task Group 1 and Task Group 2 discussed their substantive recommendations to the FAA. Id. at 8–14.
70. According to the publicly available records of the May 2017 meeting, the privacy implications of drones were referenced only twice in passing.
71. Between the DAC’s May 2017 and July 2017 meetings, the DACSC and the Task Groups continued engaging in official Committee business. See Ex. 11 at 3–9.
72. Although members of the DACSC and the Task Groups met and conferred during this period, see id., Defendants failed to publicly notice or announce any such meetings.
73. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection, apart from limited information presented to the DAC at its July 2017 meeting.
74. On July 21, 2017, the DAC held its fourth full Committee meeting via digital conference. Ex. 11. Mr. Elwell, then the FAA Deputy Administrator, attended the meeting as the Committee’s newly appointed DFO. Id. at 2. Elwell also delivered remarks during the meeting. Id. at 2–3.
75. Task Group 1 and Task Group 3 both delivered a progress report and recommendations to the DAC at the July 2017 meeting. Id. at 3–9. Task Group 3 also presented an interim report intended for the FAA concerning funding mechanisms for the introduction of drones into the NAS. Id. at 3–7.
77. According to the publicly available records of the July 2017 meeting, Mayor Lee’s statement was the sole reference made by the DAC to the privacy implications of drones.
78. During the July 2017 meeting, the DAC approved the interim funding report presented by Task Group 3. The RTCA officially delivered the Task Group 3 report to then-Deputy Administrator Elwell on September 11, 2017. Ex. 17.30 The RTCA Advisory Committee does not appear to have collectively reviewed or approved the Task Group 3 report before transmitting it to the FAA.
79. Between the DAC’s July 2017 and November 2017 meetings, the DACSC and the Task Groups continued engaging in official Committee business. See Ex. 12 at 8–18.
80. Although members of the DACSC and the Task Groups met and conferred during this period, see id., Defendants failed to publicly notice or announce any meetings.
81. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection, apart from limited information presented to the DAC at its November 2017 meeting.
30 Letter from Margaret Jenny, President, RTCA, to Daniel K. Elwell, Deputy Adm’r, FAA (Sep. 11, 2017).
84. On November 8, 2017, Mayor Ed Lee sent a letter to DAC Chairman Brian Krzanich warning that “Task Group 1’s process has been marred by a lack of transparency and poor management,” including “lack of agendas, last minute rescheduling of meetings, failure to have minutes of any proceedings, conflicting advice and guidance by RTCA and Requirements to sign documents that public employees cannot sign.” Ex. 19 at 1. Mayor Lee added: “Additionally, there is a stark imbalance of perspectives and viewpoints favoring industry interests at the expense of local and state governments and members of the public. Because the process was flawed, the recommendations produced by that process are also flawed.” Id.
85. On the same day—November 8, 2017—the DAC held its fifth full Committee meeting at the Amazon Meeting Center in Seattle, Washington. Ex. 12. Mr. Elwell, then the FAA Deputy Administrator, attended the meeting and delivered remarks. Id. at 2–6.
86. The DACSC and each of the Task Groups delivered a progress report to the DAC at the November 2017 meeting. Id. at 7–18. Each Task Group discussed its substantive recommendations to the FAA. Id. at 8–14.
87. Task Group 2 also presented a final report intended for the FAA concerning drone access to airspace. Id. at 12–16. The DAC approved the report. Id. at 16.
88. According to the publicly available records of the November 2017 meeting, the privacy implications of drones were referenced only four times: once in a question posed to Task Group 2 and three times in a presentation about local government views on drone deployment.
89. On information and belief, the DACSC and the DAC Task Groups have continued to meet, confer, and engage in official Committee business since the November 2017 meeting.
90. Defendants have failed to publicly notice or announce any meetings of the DACSC or the DAC Task Groups from this period.
91. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection.
92. On March 9, 2018, the DAC held its sixth full Committee meeting in McLean, Virginia. Sixth Drone Advisory Committee (DAC) Meeting, 83 Fed. Reg. 7,284, 7,284 (Feb. 20, 2018).
93. To date, Defendants have failed to release minutes from the March 2018 meeting. However, Acting Administrator Elwell was scheduled to attend and speak at the meeting as the Committee’s DFO. Id.
95. On March 20, 2018, EPIC sent a records request via email to Acting FAA Administrator Elwell, DOT Committee Management Officer David W. Freeman, DAC Secretary Al Secen, and the RTCA’s general information email address. Ex. 18.
96. In its request, EPIC stated that it wished to access “all ‘records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by’ the DAC or any DAC subcomponent. 5 U.S.C. App. 2 § 10(b).” Id.
97. EPIC asked the agency and Committee recipients to “direct EPIC to the URL or location where the full collection of DAC and DAC subcomponent records is available for public inspection and copying.” Id.
98. EPIC also advised the FAA, DAC, and RTCA of its records disclosure obligations under the FACA. Id.
99. As of April 11, 2018, EPIC has received no response to its request.
100. On April 6, 2018, EPIC Counsel John Davisson called and left a voicemail message for DAC Secretary Al Secen. Mr. Davisson reiterated EPIC’s desire to obtain access to DAC records and left a return number for Mr. Secen to call.
101. As of April 11, 2018, EPIC has received no response to this message.
102. Plaintiff asserts and incorporates by reference paragraphs 1–101.
103. Defendants have failed to open meetings of the DACSC and DAC Task Groups to the public.
104. Defendants’ failure to open DACSC and DAC Task Group meetings to the public is a violation of 5 U.S.C. app. 2 § 10(a)(1).
105. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ violation of 5 U.S.C. app. 2 § 10(a)(1). By failing to open DACSC and DAC Task Group meetings, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.
106. Plaintiff has exhausted all applicable administrative remedies.
107. Plaintiff asserts and incorporates by reference paragraphs 1–101.
108. Defendants have failed to open meetings of the DACSC and DAC Task Groups to the public, as required by 5 U.S.C. app. 2 § 10(a)(1).
109. Defendants’ failure to make these meetings open to the public constitutes agency action unlawfully withheld or unreasonably delayed in violation of 5 U.S.C. § 706(1).
110. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ violation of 5 U.S.C. § 706(1). By failing to open DACSC and DAC Task Group meetings, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.
111. Plaintiff has exhausted all applicable administrative remedies.
112. Plaintiff asserts and incorporates by reference paragraphs 1–101.
113. Defendants have held numerous nonpublic meetings of the DACSC and DAC Task Groups in violation of 5 U.S.C. app. 2 § 10(a)(1).
114. By holding nonpublic meetings, Defendants have engaged in conduct that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under 5 U.S.C. § 706(2)(a) and short of statutory right under 5 U.S.C. § 706(2)(c).
115. Defendants’ conduct constitutes final agency action under 5 U.S.C. § 704.
116. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ actions. By holding nonpublic DACSC and DAC Task Group meetings, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.
117. Plaintiff has exhausted all applicable administrative remedies.
118. Plaintiff asserts and incorporates by reference paragraphs 1–101.
119. Defendants have failed to make “available for public inspection and copying” numerous “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups. 5 U.S.C. app. 2 § 10(b).
120. Plaintiff sought to inspect and copy these records, but Defendants did not make them available to Plaintiff.
121. Defendants’ failure to make these records available for inspection and copying is a violation of 5 U.S.C. app. 2 § 10(b).
122. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ violation of 5 U.S.C. app. 2 § 10(b). By failing to make numerous DAC records available for public inspection, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.
123. Plaintiff has exhausted all applicable administrative remedies.
124. Plaintiff asserts and incorporates by reference paragraphs 1–101.
125. Defendants have failed to make “available for public inspection and copying” numerous “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups. 5 U.S.C. app. 2 § 10(b).
126. Plaintiff sought to inspect and copy these records, but Defendants did not make them available to Plaintiff.
127. Defendants’ failure to make these records available to Plaintiff constitutes agency action unlawfully withheld or unreasonably delayed in violation of 5 U.S.C. § 706(1).
128. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ violation of 5 U.S.C. § 706(1). By failing to make numerous DAC records available for public inspection, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.
129. Plaintiff has exhausted all applicable administrative remedies.
130. Plaintiff asserts and incorporates by reference paragraphs 1–101.
131. Since September of 2016, Defendants have held multiple meetings of the DAC, the DACSC, and the DAC Task Groups; engaged in substantive deliberations within and between the DAC, the DACSC, and the DAC Task Groups; issued official recommendations, reports, findings, and conclusions on behalf of the DAC, the DACSC, and the DAC Task Groups; assigned “action items” on behalf of the DAC to the FAA, the RTCA Advisory Committee, the DACSC, and the DAC Task Groups; and undertaken other official DAC business.
132. Defendants have engaged in this conduct without making “available for public inspection and copying” numerous “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups. 5 U.S.C. app. 2 § 10(b).
133. Plaintiff sought to inspect and copy these records, but Defendants did not make them available to Plaintiff.
134. By undertaking official Committee business without publicly disclosing records covered by U.S.C. app. 2 § 10(b), Defendants have engaged in conduct that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under 5 U.S.C. § 706(2)(a) and short of statutory right under 5 U.S.C. § 706(2)(c).
135. Defendants’ conduct constitutes final agency action under 5 U.S.C. § 704.
136. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ actions. By undertaking official Committee business without publicly disclosing numerous records covered by U.S.C. app. 2 § 10(b), Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.
137. Plaintiff has exhausted all applicable administrative remedies.
138. Plaintiff asserts and incorporates by reference paragraphs 1–101.
139. Plaintiff is entitled under 28 U.S.C. § 2201(a) to a declaration of the rights and other legal relations of the parties with respect to the claims set forth in Counts I–VI.
H. Grant such other relief as the Court may deem just and proper.


text:
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Claims for board or services furnished to a decedent must be established by clear and reasonably positive evidence.
Those having reasonable and fairly well substantiated claims for board or services furnished a decedent should not be treated with any less consideration before courts than others.
Evidence established express contract by deceased to pay niece for board.
Presumption is that person coming to live with one not member of immediate family will arrange to pay reasonable board if financially able.
Presumption is that stipulated amount for board and the like was paid reasonably near due date if decedent was well able to pay at time.
Chancellor's finding on facts cannot stand on appeal if manifestly wrong.
Where testimony of intelligent witnesses is undisputed, is reasonable, and in harmony with physical facts and facts of common observation, and witnesses are unimpeached, trier of facts must act on testimony.
APPEAL from chancery court of Lafayette county; HON. N.R. SLEDGE, Chancellor.
T.H. McElroy, of Oxford, for appellant.
The appellant claims she has met the burden of proof in law, by showing a positive and definite contract.
24 C.J., 406, sec. 1123.
The deceased in this case was a man of some means; the appellant was not under any obligation to furnish board and lodging free; the testimony uncontradicted by three witnesses is that there was a contract definitely entered into between the uncle and the niece; and that part of the board was paid during the time the deceased stayed with the appellant.
Evidence where three witnesses testify held sufficient at least, to require defendant to introduce testimony to overcome it.
Loviza v. Lynch, 115 Miss. 694, 76 So. 629.
Milton Williams, of Memphis, Tenn., for appellee.
Claims of the character of the one here involved, brought up for the first time after the death of the decedent, are looked upon by the courts with disfavor. In order to establish one, the evidence must clearly establish a contract, express or implied, between the claimant and decedent, providing therefor.
Hoyle et al. v. Smith et al., 113 Miss. 729, 74 So. 611; 18 Cyc. 409; 16 Cyc. 412.
Loose declarations of the decedent to a third person expressing a willingness to pay the claimant for services then being rendered by him, are insufficient to establish either that such services were not contemplated by the contract, or an agreement to pay extra therefor.
Bell v. Oates, 53 So. 491.
Particularly strong and convincing proof is required where a claim is stale, or where the service extended over a considerable period and no demand for compensation was ever made during decedent's life time, or where there are any circumstances connected with the claim tending to render it improbable or suspicious.
24 C.J. 406, sec. 1123.
Argued orally by T.H. McElroy, for appellant.
Griffith, J., delivered the opinion of the court.
On June 26, 1930, within the time allowed by law, appellant probated her claim against the estate of S.A. Eastep, deceased, for board and lodging from November 10, 1927, to October 31, 1929, at the rate of fifteen dollars per month amounting to the total of three hundred fifty-five dollars. The administrator admitted, after investigation on his part, that the claim was just and owing; but on November 15, 1930, Mrs. J.O. Barnes, one of the distributees in said estate, filed her protest and objections against the allowance of said claim or any part thereof, which objections upon a hearing by the chancellor were sustained, and the claim was disallowed.
The testimony, which is undisputed, shows that the deceased, Eastep, was a confederate veteran, and at the time of his death on October 31, 1929, was about eighty years old. He had never married, and with whom or how he had lived previously to the date next herein mentioned is not shown in the record, except for an inference to be drawn from a casual answer of one of the witnesses to the effect that a short time theretofore he had been living with a niece by the name of Brazier. He had no surviving brother or sister, and his nearest relatives were nephews and nieces, living in widely separated communities, but apparently the claimant, who was a niece, lived in the same community where the deceased had resided.
The husband of claimant testified that on the 10th day of October, 1926, Mr. Eastep came to the home of claimant and stated to the said husband of claimant that he desired to come and live with claimant and her said husband, "if you don't charge too much board." The husband referred the matter to his wife, the claimant, who was then and there present, whereupon Mr. Eastep turned to her and asked her what she would charge him for board, and she replied in the form of the interrogatory, "Will fifteen dollars a month be too much?" to which Mr. Eastep responded that the amount mentioned would be agreeable to him. The witness Hill, the husband of one of Mr. Eastep's nieces, testified that some time about Christmas of said year 1926 he went with his wife to visit Mr. Eastep and finding him at claimant's residence, inquired of him whether he expected to make that his home, to which Mr. Eastep replied in the affirmative and added in explanation that he had made arrangements with Mrs. Tarver, the claimant, to live with her and to pay her fifteen dollars a month board. The testimony of these two witnesses is undisputed.
The testimony is undisputed also that, from the time Mr. Eastep came to claimant's home and made the contractual arrangement aforesaid, he remained there until his death; that during the entire time he was unable to work, moved about with the aid of a cane, was sometimes sick, was at nearly all times taking medicine, and was constantly visiting a physician, upon which visits claimant and her husband would accompany him. There is no suggestion in the record that claimant and her husband were not uniformly kind to the old man and considerate of all his wants. On the contrary, every inference to be drawn from the record bears out the affirmative of that inquiry; whereas the record is to the effect that none of the others of his relatives were doing anything towards his care, save an occasional visit, and that, as to the objector in this case, she did not even do that.
The rule is well established in this state that claims for board or services furnished to a decedent must be established by clear and reasonably positive evidence and "that such claims and the evidence adduced to support them should be carefully scrutinized so as to prevent, as far as possible, the allowance of unjust or fictitious demands." 24 C.J., p. 404; Bell v. Oates, 97 Miss. 790, 53 So. 491; Hoyle v. Smith, 113 Miss. 729, 74 So. 611. But this does not mean that the solicitude for the integrity of decedents' estates shall be pushed to any such an extreme as that those who have reasonable and fairly well-substantiated claims of the nature here involved shall be treated with any less consideration before the courts than others who are required to apply there for the adjudication of their demands. Unjust and fictitious claims are to be rejected, certainly, and all claims of the nature here before the court must be cautiously examined, certainly; but we must not forget that, when a claim of this character, for the board of, and watching over, an old and physically dependent person, is a just claim, there is none other more just or meritorious.
We think the undisputed testimony of the two witnesses above mentioned is sufficient to establish an express contract to pay board at the rate of fifteen dollars per month, and certainly so when taken in connection with the circumstances hereinafter to be mentioned. The testimony of the said two witnesses has some direct corroboration in the testimony given by the circuit clerk of the county, who states that in the summer of 1929 Mr. Eastep said to him (said clerk) on an occasion when Mr. Eastep had bought a cold drink, that he (Eastep) would have to quit buying those drinks; that times were hard; that he could not draw his pension money; and that he did not see how he was going to pay his board. There is here, at least, an acknowledgment of an obligation to pay board and an admission against any such theory as that he was residing with the claimant upon terms of gratuity.
But the said testimony of the circuit clerk, as above recited, has a further and an important bearing upon this case. There is the following presumption: When a person not a member of the immediate family — by which is meant, in this connection, those who have not in the ordinary course of the family life lived under the same roof — comes without special invitation to another person to board or to live, there is the presumption that, if the person so coming to live or to board is financially able, he will arrange to pay a reasonable board, and will make some agreement so to do. This has its foundation in the presumption of honesty. The testimony now discloses that, when Mr. Eastep came, at his own invitation, to the home of claimant and arranged for board, he was, as he knew, then financially able to pay and to continue to pay the agreed amount. And thus the testimony that the contract was then made so to pay is strengthened and in this case made amply sufficient.
But upon like foundation there is also the presumption, in cases of claims for board and the like against the estate of a decedent, that the stipulated amount has been paid when due or reasonably near the due dates, if during all the while the decedent was well able to pay, and had on hand the current funds so to do. And it now turns out that deceased was able to pay, and was able at the time, in the summer of 1929, when he was telling the circuit clerk that because of hard times and the failure to draw his pension money he was afraid he could not pay his board; for, as the administrator has discovered, he had on deposit at that very time seven hundred dollars in bank, and, when he died soon thereafter, on October 31, there was found on his person cash in the sum of five hundred dollars and forty-five cents, and his bank deposit was still intact; the bank account showing that he had not drawn a check upon it since March, 1926.
How does the case stand then on this presumption of payment? The testimony shows that some months before Mr. Eastep came to claimant's home to board he had loaned her one hundred forty-five dollars, and that later he had given to one of claimant's children a cow, and also that in the latter part of the year 1927 he had given to claimant a secondhand Ford automobile which Mr. Eastep had purchased for one hundred seventy-five dollars, and which was to enable claimant and her husband to carry Mr. Eastep on his visits to his physician. Beyond the loan and gifts aforesaid, the testimony is that nothing was received from Mr. Eastep on his board. The one hundred forty-five dollars, and evidently the cow also, though no value was given in the evidence respecting the cow, were credited on the first year's board, so that the probated claim began with November 10, 1927, instead of November 10, 1926. No credit, however, was given for the Ford car, which we think, and now state, should be credited, because, although claimant may have honestly supposed from remarks made by deceased that the car was an outright gift to her, there is not enough to show but that it was the purpose of the deceased that the car was to be taken as a credit on his said board bill, and the latter view is the more agreeable with the salient characteristics which mark this record.
No demand was made of Mr. Eastep by claimant for the payment of his board beginning with the second year, nor at any time thereafter, and the claim was not probated until June 26, 1930, although it must be added that notice to creditors had not been published until that same day. The testimony shows that neither the claimant nor her said husband knew, during the last two years of his life, of any property or money belonging to Mr. Eastep other than some loans upon which he was drawing interest, plus his pension money, payment upon which had been stopped some time before his death; this latter fact being disclosed, not only by the statements of deceased, but also by the reports of the administrator to the effect that the administrator collected some two hundred ten dollars of back-due pension money. The report of the administrator discloses also the existence of the outstanding loans, which turned out, however, to be small. The husband of claimant stated that they knew of no other property owned by deceased; that he knew that deceased, at some time prior to the first date of the claim here propounded, had owned some small real property interests, but that his information was that all this had been sold and that the proceeds had gone into the loans mentioned upon which deceased was drawing an occasional payment of interest; that the impression conveyed to claimant and her said husband by deceased was that the money coming into the hands of deceased from these loans, and after the payments on the pension money had been stopped, was all that he had available, and this was not more than sufficient to pay for medicines and physician's services and for the needs of deceased, other than his board; and that, out of delicacy for that situation, claimant did not make or press any demands on him for said board, during the last two years.
That claimant and her husband did not know of any money in bank is demonstrated, we think, by the circumstances that, when the said husband went to Oxford to deposit the balance of the money, found on the person of the deceased at the time of his death, less that which was paid for funeral expenses, the money was deposited in a different bank, which certainly would not have so happened had they known of the deposits and deposit account already existing in another bank in the same town. And just here is to be mentioned an important consideration as confirmatory of the fidelity and honesty of this claimant and her husband. Nobody except them, so far as this record discloses or gives any intimation or ground for suggestion, knew that, when the deceased died, there was discovered on his person the sum of five hundred dollars and forty-five cents. If they had any purpose, or were of the characters, to filch from the estate, or act dishonestly in regard to it, they could have kept the entire five hundred dollars and forty-five cents, said nothing about it, and none would ever have known of it.
It might be argued, in the connection last mentioned, that, if this board bill was actually owing, the claimant and her husband, after the paying of the funeral expenses out of this money, would have kept the balance to apply on said bill; and, although disclosing to others the finding of said money on the person of deceased at his death, they would have justified the retention of the balance for the board bill debt; and that, not having done so, there was no board bill due. While it may be admitted as true that some persons would have taken the course suggested, we must deny that the average person, entertaining an average sense of delicacy or honor, would have done other than was done by claimant and her husband here, and for reasons obvious to the mind and feeling of the average normal person, which reasons do not need elaboration here at our hands.
We are thus brought to the point where we may return to the testimony of the circuit clerk which we have said has an important bearing on this case. It confirms not only that the deceased recognized an obligation to pay board, but confirms the testimony of claimant's husband that deceased was not actually paying to the full amount due and when due, because he was giving out the impression that he was not then able to do so, not only to claimant and her husband, but also to others. He told the circuit clerk that he would have to quit buying soft drinks costing five cents each because his pension money had been held back on him and that he could not pay his board. It was true that his pension payments had been held up, but at the same time it was also true that he had at that very time more than one thousand two hundred dollars cash on hand.
Those who have long judicial experience, as well as many others who have closely observed the actual facts of life, have noticed two different peculiarities in some of the old and physically dependent persons who, being without homes of their own and being under the necessity of living with strangers or with those not of their immediate family, have thereby come under the dread of losing the aid of younger hands and the interest of younger hearts. It is sometimes found in such cases that the aged person observed will conceive himself to be the owner of a large estate, and will make sundry suggestions in respect to the bounties which will be found in his last will and testament in favor of those who will continue to befriend and minister to him in his last days; while another such person so observed will take an opposite course, will hoard and hold onto every penny he possesses, and will at the same time exert seductive and cautious efforts to convey the impression that he is practically without presently available means, so that, if those with whom he is presently located continue kind to him and, as well, take care of his physical wants, he will be safe in his lifetime and upon his death those to whom he is thus indebted will be safe in that they will find in his estate the means to repay them, thus ultimately fulfilling in substantial effect the requirements of honesty, whereas if that kindness ceases, he will still be safe in that he can go elsewhere and will have the reserved means actually on hand with which to do so.
This record demonstrates, as we think, that we have here a case of the latter kind and that the adjudication of the issue should be placed upon that view. We have written at length, because the finding of the chancellor upon the facts was adverse to the claimant, and the rule is that the finding of the chancellor on the facts must stand unless manifestly wrong, and this includes the reasonable inferences that may be drawn by the chancellor, as the trier of the facts. But we think the chancellor must have been influenced, as a matter of law, by some of the rather broad expressions found in some of our decisions, which, if disassociated from the facts of the cases in hand, would seem almost to outlaw claims of this character; whereas the real meaning of those expressions is to be interpreted as we have hereinabove stated. Moreover, the salient and controlling facts in this case are undisputed, and they are stronger for the claimant than were those in Loviza v. Lynch, 115 Miss. 694, 76 So. 629, wherein there was a reversal. See, also, Gaulden v. Ramsey, 123 Miss. 1, 85 So. 109. Where, as in this case, the testimony of intelligent witnesses is undisputed, is reasonable in itself, and is in reasonable harmony with the physical facts and the facts of common observation among experienced persons, and the witnesses are unimpeached, then the trier of the facts must act on the testimony and cannot reject it, else trials might eventuate in arbitrary results, rather than in the product of judicial determination. It is better that courts may be sometimes wrong, may sometimes fail to find justice, than at any time they shall act arbitrarily, or be bound by anything other than the record of the case as it is made out in court.
The decree will be reversed, and a decree will be entered here in favor of appellant for the amount of her claim, less credit for the Ford car, that is, a decree will be entered here for a balance of one hundred eighty dollars; the costs of this appeal to be taxed against the objector, Mrs. J.O. Barnes, said costs to be paid by the administrator out of her distributive share in said estate, the receipt of the clerk to become the voucher therefor.

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