Jobe v. National Transportation Safety Board, No. 20-30033 (5th Cir. 2021)Annotate this Case
In this case involving the tragic crash of a sightseeing helicopter in Hawaii, at issue is whether communications between the NTSB and outside consultants must be disclosed to the public under the Freedom of Information Act (FOIA).
The Fifth Circuit concluded that the outside parties solicited by the NTSB qualify as "consultants" under Exemption 5's corollary. The court explained that Department of the Interior v. Klamath Water Users Protection Association, 532 U.S. 1 (2001), does not stand for the broad principle that a consultant's "self-interest" always excludes it from Exemption 5. And, properly applied, the consultant corollary squarely covers the NTSB's communications with the non-agency parties here. The court further explained that subjecting the NTSB's communications with consultants to broad public disclosure would inhibit the agency's ability to receive candid technical input from those best positioned to give it. On remand, the district court will need to undertake the second facet of the Exemption 5 inquiry: determining whether the documents at issue are subject to a litigation privilege ordinarily available to a government agency. Accordingly, the court reversed and remanded.