Rojas v. Federal Aviation Administration, No. 17-55036 (9th Cir. 2021)
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Plaintiff made a Freedom of Information Act (FOIA) request after the FAA notified him that he was ineligible for an Air Traffic Control Specialist position based on his performance on a screening test called the Biographical Assessment. At issue is FOIA's Exemption 5, which provides that FOIA's disclosure requirements do not apply to "interagency or intra-agency memorandums or letters that would not be available by law to a party . . . in litigation with the agency."
The en banc court joined six of its sister circuits in adopting the consultant corollary to Exemption 5, and held that the term "intra-agency" in 5 U.S.C. 552(b)(5) included, at least in some circumstances, documents prepared by outside consultants hired by the agency to assist in carrying out the agency's functions. The en banc court explained that the relevant inquiry asks whether the consultant acted in a capacity functionally equivalent to that of an agency in creating the document or documents the agency sought to withhold. In this case, the FAA properly withheld two of the three documents at issue under that exemption. However, the en banc court held that the FAA did not establish that the remaining document is protected by the attorney work-product privilege, and the agency failed to show that it conducted a search reasonably calculated to locate all documents responsive to petitioner's FOIA request. Accordingly, the en banc court vacated the district court's entry of summary judgment for the FAA and remanded for further proceedings. The en banc court denied plaintiff's motion for judicial notice.
Court Description: Freedom of Information Act The en banc court affirmed in part and vacated in part the district court’s summary judgment in favor of the Federal Aviation Administration (“FAA”) in a plaintiff’s Freedom of Information Act (“FOIA”) action seeking FAA agency records. FOIA’s Exemption 5 provides that FOIA’s disclosure requirements do not apply to “inter-agency or intra-agency memorandums or letters that would not be available by law to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5). The FAA’s Office of Chief Counsel informed plaintiff that it was withholding three documents from his FOIA requests under Exemption 5. The validation documents that the FAA sought to withhold were prepared by an outside consultant rather than by an FAA employee. The en banc court joined six sister circuits that have recognized some version of the consultant corollary to Exemption 5, and held that the term “intra-agency” in § 552(b)(5) included, at least in some circumstances, documents prepared by outside consultants hired by the ROJAS V. FAA 3 agency to assist in carrying out the agency’s functions. The court held that the relevant inquiry asks whether the consultant acted in a capacity functionally equivalent to that of an agency in creating the document or documents the agency sought to withhold. Applying these principles, the en banc court concluded that the consultant, APTMetrics, created the three documents at issue while performing work in the same capacity as an employee of the FAA. APTMetrics represented neither its own interests nor those of any other client in carrying out its work, and it did not share the documents with anyone outside the FAA’s Office of Chief Counsel. With respect to the preparation of the documents, APTMetrics was operating enough like the FAA’s own employees to justify calling its own communications with the FAA “intra-agency.” Because the documents at issue qualified as intra-agency memorandums, the en banc court next considered whether they satisfied Exemption 5’s second requirement that the documents “would not be available by law to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5). The court, agreeing with the district court, held that two of the three documents listed in the Vaughn index were protected by the attorney work-product privilege and thus could not be subject to discovery in civil litigation with the FAA. A remand, however, was necessary to determine whether the third document was also protected by privilege; and the court vacated the district court’s summary judgment for the FAA as to the third document. The en banc court addressed plaintiff’s arguments concerning the adequacy of the FAA’s search for responsive documents. First, the court held that Supreme Court precedent foreclosed plaintiff’s contention that the FAA 4 ROJAS V. FAA should have been required to search APTMetrics’ records for documents responsive to his FOIA request. Second, the court held that the declarations submitted by the FAA failed to show that it conducted a search reasonably conducted to uncover all relevant documents. The en banc court remanded for further proceedings. Judge Collins joined in the majority opinion that adopted the reading of Exemption 5 endorsed by Justice Scalia in his dissenting opinion in U.S. Department of Justice v. Julian, 486 U.S. 1 (1988), and wrote separately to respond to the dissents’ erroneous contentions that Justice Scalia’s reading of Exemption 5 was “atextual.” Judge Wardlaw, joined by Chief Judge Thomas and Judge Hurwitz, concurred in part and dissented in part. Judge Wardlaw would hold that Exemption 5’s text is crystal clear: documents or communications exchanged with outside consultants do not fall within that exemption. She agreed with the majority that the FAA’s search for records was inadequate, and joined part III of the majority opinion. Chief Judge Thomas concurred in part and dissented in part. He joined Judge Wardlaw’s dissent in full, and also agreed with the majority opinion’s holding that the FAA did not meet its burden to show that it conducted an adequate search for documents responsive to plaintiff’s FOIA request. He wrote separately to observe that, even if the consultant corollary formed part of Exemption 5, it would not protect the specific information sought in this case because the information was required to be maintained and made publicly available by the agency. Judge Ikuta, joined by Judges Graber and Callahan, and joined by Judge Bumatay except as to footnote 1, dissented ROJAS V. FAA 5 in part. Judge Ikuta disagreed with the majority’s conclusion that the declaration submitted by the FAA failed to show that the agency conducted a search reasonably calculated to uncover all relevant documents in response to the FOIA request. In footnote 1, Judge Ikuta stated that she agreed with the majority’s interpretation of “intra-agency memorandums or letters” to include documents prepared by outside consultants hired by the agency to assist its functions, and she would affirm the summary judgment for the FAA as to the first two withheld documents, and reverse as to the third document for the reasons stated in the majority opinion. Judge Bumatay concurred in part and dissented in part. He would hold that FOIA Exemption 5 does not cover consultant work product, and by its plain text, it does not protect APTMetric’s documents from disclosure. He agreed with the majority that the FAA was not required to search APTMetric’s records for responsive documents, but agreed with Judge Ikuta’s dissent that the majority was incorrect in finding that FAA’s search was inadequate.
This opinion or order relates to an opinion or order originally issued on April 24, 2019.
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