Jorge Rojas v. Faa , 927 F.3d 1046 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE ALEJANDRO ROJAS, No. 17-55036
Plaintiff-Appellant,
D.C. No.
v. 2:15-cv-05811-
CBM-SS
FEDERAL AVIATION
ADMINISTRATION,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Argued and Submitted June 6, 2018
Pasadena, California
Filed April 24, 2019
Before: Kim McLane Wardlaw and Morgan Christen,
Circuit Judges, and Donald W. Molloy, * District Judge.
Opinion by Judge Molloy;
Partial Concurrence and Partial Dissent by Judge Christen
*
The Honorable Donald W. Molloy, United States District Judge
for the District of Montana, sitting by designation.
2 ROJAS V. FAA
SUMMARY **
Freedom of Information Act
The panel reversed the district court’s order granting
summary judgment in favor of the Federal Aviation
Administration (“FAA”) in a case concerning a Freedom of
Information Act (“FOIA”) request.
The plaintiff submitted the 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.
The panel held that the FAA failed to conduct a search
reasonably calculated to uncover all relevant documents in
response to plaintiff’s FOIA request.
The panel held that the records at issue were not “intra-
agency” documents, and FOIA’s Exemption 5 did not apply.
Joining the Sixth Circuit, the panel rejected the consultant
corollary theory, adopted by the district court and some sister
circuits, which uses a functional interpretation of Exemption
5 that treats documents produced by an agency’s third-party
consultant as “intra-agency” memorandums.
The panel rejected plaintiff’s argument that the FAA had
an obligation under FOIA to retrieve any responsive
documents, such as the underlying data to the summaries.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ROJAS V. FAA 3
Judge Christen concurred in part and dissented in part.
She concurred with the majority that plaintiff cannot use
FOIA to access materials that the FAA does not actually
possess, and that the scope of the FAA’s in-house search for
responsive documents was inadequate. She dissented from
the majority’s rejection of the consultant corollary doctrine
adopted by seven sister circuits. She would adopt the
corollary to shield work product generated by the
government’s outside consultants in anticipation of
litigation.
COUNSEL
Michael William Pearson (argued), Curry Pearson &
Wooten PLC, Phoenix, Arizona, for Plaintiff-Appellant.
Alarice M. Medrano (argued), Assistant United States
Attorney; Dorothy A. Schouten, Chief, Civil Division;
United States Attorney’s Office, Los Angeles, California;
for Defendant-Appellee.
4 ROJAS V. FAA
OPINION
MOLLOY, District Judge:
Jorge Alejandro Rojas (“Rojas”) appeals the district
court’s order granting summary judgment in favor of the
Federal Aviation Administration (“FAA”). The case
concerns a Freedom of Information Act (“FOIA”) request
Rojas submitted to the FAA 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 (“BA”). The district court held
that (1) the FAA fulfilled its FOIA obligations by conducting
a reasonable search for the requested information and (2) the
FAA properly withheld nine pages of summary documents
pursuant to Exemption 5 as inter-agency memoranda subject
to the attorney work-product doctrine. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we reverse and remand.
I. Background
A. The Biographical Assessment
In November 2012, the FAA hired Applied
Psychological Techniques, Inc. (“APTMetrics”), a human
resources consulting firm, to review and recommend
improvements to the FAA’s hiring process for Air Traffic
Control Specialists.
In 2013, APTMetrics developed the BA test to replace
the FAA’s existing Air Traffic Selection and Training Test.
The BA is an initial screening test that determines whether
an applicant possesses certain characteristics empirically
shown to predict success in an Air Traffic Control Specialist
position. These characteristics include flexibility, risk-
tolerance, self-confidence, dependability, resilience, stress
ROJAS V. FAA 5
tolerance, cooperation, teamwork, and rules application. The
FAA implemented the BA for the first time during the 2014
hiring cycle for Air Traffic Control Specialist applicants. In
Summer and Fall 2014, the FAA revised the BA, and
APTMetrics performed validation work related to the
revised BA (the “2015 BA”). The 2015 BA was
subsequently incorporated in the 2015 Air Traffic Control
Specialist hiring process. 1
In November 2014, the FAA Office of the Chief Counsel
asked John Scott (“Scott”), then Chief Operating Officer of
APTMetrics, to create “summaries and explanations” of its
validation work on the 2015 BA in anticipation of litigation
on the FAA’s hiring practices. Scott provided the Office of
the Chief Counsel with an initial summary in December
2014 and a supplement in January 2015.
B. Rojas’s Application and FOIA Request
In early 2015, Rojas applied for an Air Traffic Control
Specialist position with the FAA. During the application
process, he completed the 2015 BA. On May 21, 2015, the
FAA notified Rojas that he was ineligible for a position
based on his responses to the BA. Rojas’s rejection
1
Rojas requests judicial notice of a transcript of a congressional
hearing from June 15, 2016. In general, we may take judicial notice of
publicly available congressional records, including transcripts of
congressional hearings. See Fed. R. Evid. 201(b)(2); Lee v. City of L.A.,
250 F.3d 668, 689 (9th Cir. 2001) (providing that judicial notice may be
taken of public records). But judicial notice is not appropriate here
because the testimony at issue is “not relevant to the resolution of this
appeal.” Santa Monica Food Not Bombs v. City of Santa Monica,
450 F.3d 1022, 1025 n.2 (9th Cir. 2006). According to Rojas, the
testimony is pertinent to whether the FAA conducted validation studies
on the BA. This fact is undisputed on appeal: both parties agree that
APTMetrics validated the 2014 and 2015 BA for the FAA.
6 ROJAS V. FAA
notification briefly described the BA and stated that the test
was “independently validated by outside experts.”
On May 24, 2015, Rojas emailed the FAA a FOIA
request seeking “information regarding the empirical
validation of the biographical assessment noted in [his]
rejection notification [from the FAA]. This includes any
report created by, given to, or regarding APTMetrics’
evaluation and creation and scoring of the assessment.” On
June 18, 2015, the FAA, through the Office of the Chief
Counsel, denied Rojas’s FOIA request for documents on the
empirical validation of the 2015 BA. The FAA reasoned that
these records were, in part, protected as attorney work-
product and therefore subject to Exemption 5 of FOIA. See
5 U.S.C. § 552(b)(5). On June 24, 2015, Rojas filed an
administrative appeal contesting the FAA’s denial of his
FOIA request. On October 7, 2015, the FAA remanded
Rojas’s case to the Office of the Chief Counsel because the
agency incorrectly searched for documents on the empirical
validation of the 2014 BA, instead of the 2015 BA.
Pursuant to the remand, attorneys at the Office of the
Chief Counsel reviewed records on the empirical validation
of the 2015 BA. They located the following three
documents: (1) a summary of the Air Traffic Control
Specialist hiring process, dated December 2, 2014; (2) a
summary of the 2015 BA, dated January 29, 2015; and (3) a
summary of the validation process and results of the 2015
BA, dated September 2, 2015. All of these records were
created by APTMetrics and are identified in the FAA’s
Vaughn Index. 2 The FAA denied Rojas’s FOIA request for
2
Agencies are typically required to submit a Vaughn Index in FOIA
litigation. See Vaughn v. Rosen, 484 F.2d 820, 823–25 (D.C. Cir. 1973),
cert. denied, 415 U.S. 977 (1974). A Vaughn Index identifies the
ROJAS V. FAA 7
the second time on December 10, 2015, once again invoking
Exemption 5 and the attorney work-product doctrine.
On July 31, 2015, Rojas filed a complaint in district
court, alleging that the FAA withheld information on the
empirical validation of the 2015 BA in violation of FOIA.
On September 21, 2016, the district court ordered the FAA
to disclose the three documents identified in its Vaughn
Index for in camera review. The district court granted
summary judgment in favor of the FAA on November 10,
2016, holding that the three responsive records were
properly withheld under Exemption 5 as attorney work-
product. The court also concluded that there was no genuine
dispute of material fact that the FAA adequately searched for
relevant documents. Rojas timely appeals. See Fed. R. App.
P. 4(a).
II. Standard of Review
In FOIA cases, we review de novo a district court’s order
granting summary judgment. Animal Legal Def. Fund,
836 F.3d at 990. Summary judgment is warranted when,
viewing the evidence in the light most favorable to the non-
moving party, there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); Olsen v. Idaho St. Bd. of Med.,
363 F.3d 916, 922 (9th Cir. 2004).
documents withheld, the FOIA exemptions claimed by the agency, and
“why each document falls within the claimed exemption.” Yonemoto v.
Dep’t of Veterans Affairs, 686 F.3d 681, 688 (9th Cir. 2012), overruled
on other grounds by Animal Legal Def. Fund v. Food & Drug Admin.,
836 F.3d 987 (9th Cir. 2016) (en banc) (per curiam) (citation and internal
quotation marks omitted).
8 ROJAS V. FAA
III. Discussion
FOIA requires government agencies to “make . . .
promptly available to any person,” upon request, whatever
“records” are possessed by the agency. 5 U.S.C.
§ 552(a)(3)(A). FOIA “was enacted to facilitate public
access to [g]overnment documents” and “pierce the veil of
administrative secrecy and to open agency action to the light
of public scrutiny.” Dep’t of State v. Ray, 502 U.S. 164, 173
(1991) (citations and internal quotation marks omitted). An
agency may avoid disclosure only if it proves that the
requested documents fall within one of nine enumerated
exemptions. See 5 U.S.C. § 552(b)(1)–(9); see also Lane v.
Dep’t of Interior, 523 F.3d 1128, 1137 (9th Cir. 2008). At
issue on appeal is whether: (1) the FAA adequately searched
for records in response to Rojas’s FOIA request; (2) the FAA
properly withheld three documents under Exemption 5 of
FOIA, 5 U.S.C. § 552(b)(5); and (3) the FAA properly
construed the scope of Rojas’s FOIA request.
A. Search for Responsive Documents 3
Under FOIA, an agency responding to a request must
“demonstrate that it has conducted a search reasonably
calculated to uncover all relevant documents.” Hamdan v.
3
The FAA argues that the parties stipulated before the district court
that “the only issue in the case concerned the legal basis for the FAA’s
decision to withhold the responsive records.” While the parties
“indicated their agreement that the only issue in the case concerned the
legal basis for the FAA’s decision to withhold the responsive records,”
Rojas argued before the district court that the FAA conducted an
inadequate search, the district court held that Rojas failed to “show a
genuine issue of material fact regarding whether the search conducted by
the FAA was adequate under FOIA,” and both parties briefed the issue
on appeal and argued reasonableness at oral argument. Therefore, the
reasonableness of the FAA’s search is properly before the Court.
ROJAS V. FAA 9
Dep’t of Justice, 797 F.3d 759, 770 (9th Cir. 2015) (citation
and internal quotation marks omitted). “[T]he issue to be
resolved is not whether there might exist any other
documents possibly responsive to the request, but rather
whether the search for those documents was adequate.”
Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985)
(emphasis in original) (citation and internal quotation marks
omitted). “The adequacy of the agency’s search is judged by
a standard of reasonableness, construing the facts in the light
most favorable to the requestor.” Citizens Comm’n on
Human Rights v. Food & Drug Admin., 45 F.3d 1325, 1328
(9th Cir. 1995) (citation omitted). We conclude that the FAA
failed to conduct a search reasonably calculated to uncover
all relevant documents.
Rojas’s FOIA request sought “information regarding the
empirical validation” of the BA that was described in his
rejection notice, including “any report created by, given to,
or regarding APTMetrics’ evaluation and creation and
scoring” of the BA. In response, the Office of the Chief
Counsel located summaries of: (1) the Air Traffic Control
Specialist hiring process; (2) the 2015 BA; and (3) the
validation process and results of the 2015 BA. All of these
records were created by APTMetrics.
“[T]he government may demonstrate that it undertook an
adequate search by producing reasonably detailed,
nonconclusory affidavits submitted in good faith.” Lane,
523 F.3d at 1139 (citation and internal quotation marks
omitted). Affidavits must be “relatively detailed in their
description of the files searched and the search procedures.”
Zemansky, 767 F.2d at 573 (internal quotation marks
omitted). The agency must show that it searched for the
requested records “using methods which can be reasonably
10 ROJAS V. FAA
expected to produce the information requested.” Oglesby v.
Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990).
The FAA’s declarations did not sufficiently describe the
agency’s search procedures. The declaration of Yvette
Armstead, the FAA’s Assistant Chief Counsel, states that the
agency “conducted a search for documents responsive to
[Rojas]’s FOIA request” on two occasions—both initially
and on remand from Rojas’s administrative appeal.
Armstead further explains that the search was “reasonably
calculated to obtain responsive records” because attorneys at
the Office of the Chief Counsel who provided legal advice
on revisions to the Air Traffic Control Specialist hiring
process “were asked to review their records.” Attorneys
located “[t]hree responsive documents” comprised of nine
pages in total that “discuss[] the validation of the 2015 BA.”
Armstead’s declaration is conclusory. It omits relevant
details, such as names of the attorneys who searched the
relevant documents and the amount of time the Office of the
Chief Counsel devoted to the search. See Citizens Comm’n
on Human Rights, 45 F.3d at 1328 (concluding that agency’s
search was adequate where its declaration stated that the
agency spent over 140 hours reviewing documents in
response to the plaintiff’s FOIA request). The documents the
FAA located included summaries of the Air Traffic Control
Specialist hiring process, the 2015 BA, and the validation
process and results of the 2015 BA. But summaries by
necessity summarize something else; there is no indication
that there was any search conducted for underlying
documents. Thus, though Armstead’s declaration establishes
that appropriate employees were contacted and briefly
describes the files that were discovered, it does not
demonstrate that the FAA’s search could reasonably be
expected to produce the information requested—here,
ROJAS V. FAA 11
“information regarding the empirical validation of the
biographical assessment noted in Rojas’s rejection
notification.” Construing the facts in the light most favorable
to Rojas, the FAA has not shown “that it undertook an
adequate search,” Lane, 523 F.3d at 1139.
B. FOIA Exemption 5
Per Exemption 5, 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 other
than an agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). The exemption allows the government to
withhold records that are “normally privileged in the civil
discovery context[,]” such as documents covered by the
attorney work-product privilege. Nat’l Labor Relations Bd.
v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see
Maricopa Audubon Soc’y v. U.S. Forest Serv., 108 F.3d
1089, 1092 (9th Cir. 1997). It prevents FOIA from being
used to circumvent litigation privileges. United States v.
Weber Aircraft Corp., 465 U.S. 792, 801–02 (1984).
The threshold question under Exemption 5 is whether the
records qualify as “inter-agency or intra-agency
memorandums or letters.” 5 U.S.C. § 552(b)(5); Dep’t of
Interior v. Klamath Water Users Protective Ass’n,
532 U.S. 1, 12 (2001). By its plain terms, Exemption 5
applies only to records that the government creates and
retains. However, a number of our sister circuits have
adopted a functional interpretation of Exemption 5 that treats
documents produced by an agency’s third-party consultant
as “intra-agency” memorandums. This functional
interpretation, called the consultant corollary, recognizes
that a third-party consultant may perform certain functions
on behalf of a government agency. The consultant corollary
treats communications from third-party consultants as
12 ROJAS V. FAA
“intra-agency” memorandums under Exemption 5, as if
those communications came from the agency itself.
The district court seems to have relied on the consultant
corollary in determining that the FAA properly invoked
Exemption 5 in this case. It reasoned that “courts have
upheld the application of FOIA Exemption 5 to materials
composed and supplied by outside contractors.” At the same
time, the court concluded that the records “constitute inter-
agency memoranda created by a government agency.” The
description of the documents as “inter-agency memoranda”
is incorrect. APTMetrics is not a government agency. See
5 U.S.C. §§ 551(1) (defining agency), 552(f) (same).
Therefore, the exchange of records between it and the FAA
cannot be an inter-agency exchange. See Black’s Law
Dictionary (10th Ed. 2014) (defining the preposition “inter”
as “among”). Under the consultant corollary, to which the
district court’s reasoning alludes, the documents would be
classified as “intra-agency.”
We have yet to adopt the consultant corollary in this
Circuit, though we have previously acknowledged it. 4 Here,
the role of APTMetrics as a consultant to the FAA is
undisputed. Therefore, we must now decide whether to adopt
4
In an unpublished memorandum disposition, Center for Biological
Diversity v. Office of U.S. Trade Representative, 450 F. App’x 605, 607
(9th Cir. 2011) (mem. disp.), agency communications with private third
parties had been withheld under Exemption 5. After expressing that
“[t]his fact alone suggests [the communications] do not meet Exemption
5’s threshold requirement[,]” we nonetheless described that certain third-
party communications may fall within Exemption 5 under the consultant
corollary. Id. at 608. The case was then remanded to develop the record
on the relationships between the agency and the third parties. Id. at 609.
Because the record was unclear as to whether the third parties were
“consultants,” the case did not require us to decide the validity of the
consultant corollary in this Circuit.
ROJAS V. FAA 13
the consultant corollary to Exemption 5. Because the
consultant corollary is contrary to Exemption 5’s text and
FOIA’s purpose to require broad disclosure, we decline to
do so.
The consultant corollary contravenes Exemption 5’s
plain language. Statutory interpretation “begins with the
plain language of the statute.” Eleri v. Sessions, 852 F.3d
879, 882 (9th Cir. 2017) (citation and internal quotation
marks omitted). “When an examination of the plain language
of the statute, its structure, and purpose clearly reveals
congressional intent, our judicial inquiry is complete.” Id.
(citation and internal quotation marks omitted). Exemption 5
protects only “inter-agency or intra-agency memorandums
or letters.” 5 U.S.C. § 552(b)(5) (emphasis added). An
“agency,” with some exceptions not relevant here, is defined
as “each authority of the Government of the United States,
whether or not it is within or subject to review by another
agency.” 5 U.S.C. § 551(1). More specifically, an agency
“includes any executive department, military department,
Government corporation, Government controlled
corporation, or other establishment in the executive branch
of the Government (including the Executive Office of the
President), or any independent regulatory agency.” 5 U.S.C.
§ 552(f). A third-party consultant, then, is not an agency as
that word is used in FOIA, generally, or Exemption 5,
particularly. Indeed, “neither the terms of the exemption nor
the statutory definitions say anything about communications
with outsiders.” Klamath, 532 U.S. at 9.
In contrast, two other FOIA exemptions explicitly
protect communications with outsiders. Exemption 4 applies
to “trade secrets and commercial or financial information
obtained from a person and privileged or confidential.”
5 U.S.C. § 552(b)(4) (emphasis added). Exemption 8 applies
14 ROJAS V. FAA
to information “contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or
for the use of an agency responsible for the regulation or
supervision of financial institutions.” 5 U.S.C. § 552(b)(8)
(emphasis added). That these exemptions contemplate
information from third parties, while Exemption 5 is limited
to “inter-agency or intra-agency” communications, makes
clear that Exemption 5 applies only to records that originate
and remain inside the government. See Weber, 465 U.S. at
804 (“We therefore simply interpret Exemption 5 to mean
what it says.”). Thus, the consultant corollary expands
Exemption 5’s protections beyond the plain text of FOIA.
The dissent attempts to resolve the consultant corollary’s
tension with the statutory text by conflating the term “intra-
agency memorandums,” as used in Exemption 5, with
“agency records,” as used elsewhere in FOIA. The dissent
also construes “intra-agency” to mean records held within an
agency, even though they may have originated with a third-
party consultant. But that renders superfluous the term
“inter-agency” as used alongside “intra-agency” in
Exemption 5. And, if Congress intended Exemption 5 to
extend to all “agency records,” it would have used that term,
see 5 U.S.C. § 552(f)(1), (2), rather than the narrower “inter-
agency or intra-agency memorandums or letters,”
§ 552(b)(5).
In addition to contravening the statutory text, the
consultant corollary also undermines the purpose of FOIA.
The dissent insists that civil discovery rules dictate the scope
of Exemption 5. But FOIA “sets forth a policy of broad
disclosure of Government documents in order ‘to ensure an
informed citizenry, vital to the functioning of a democratic
society.’” FBI v. Abramson, 456 U.S. 615, 621 (1982)
(quoting Nat’l Labor Relations Bd. v. Robbins Tire &
ROJAS V. FAA 15
Rubber Co., 437 U.S. 214, 242 (1978)). “[D]isclosure, not
secrecy, is the dominant objective of the Act.” Dep’t of Air
Force v. Rose, 425 U.S. 352, 361 (1976). Accordingly, the
exemptions are construed narrowly. See id. at 361; Dep’t of
Justice v. Tax Analysts, 492 U.S. 136, 151 (1989);
Abramson, 456 U.S. at 630. Congress has instructed as much
with the statutory language that the exemptions do “not
authorize withholding of information or limit the availability
of records to the public, except as specifically stated in this
section.” 5 U.S.C. § 552(d) (emphasis added). The
consultant corollary allows the government to withhold
more documents than contemplated by Exemption 5,
contrary to FOIA’s policy favoring disclosure and its
mandate to interpret exemptions narrowly.
The cases adopting the consultant corollary do little to
confront its inconsistency with both the text and purpose of
FOIA. The opinion in which it originates, the 1971 D.C.
Circuit case Soucie v. David, 448 F.2d 1067 (D.C. Cir.
1971), does not even address the statutory text. Soucie
concerned a FOIA request for the Garwin Report, an
“independent assessment” on supersonic transport aircraft
produced by a panel of outside experts for the Office of
Science and Technology. Id. at 1070. The issue on appeal
was whether the Office of Science and Technology was an
“agency” subject to FOIA’s disclosure requirements. Id. at
1075. The D.C. Circuit held that the Office of Science and
Technology was an agency and remanded the case for the
district court to consider whether the Garwin Report fell
within any of FOIA’s exemptions. Id. at 1075–76. First,
though, the court posited that Exemption 5 may apply. Id. at
1076–77. In a footnote, the court summarily reasoned that
Exemption 5’s purpose supported applying it to records
prepared by third-party consultants:
16 ROJAS V. FAA
The rationale of the exemption for internal
communications indicates that the exemption
should be available in connection with the
Garwin Report even if it was prepared for an
agency by outside experts. The Government
may have a special need for the opinions and
recommendations of temporary consultants,
and those individuals should be able to give
their judgments freely without fear of
publicity. A document like the Garwin
Report should therefore be treated as an intra-
agency memorandum of the agency which
solicited it.
Id. at 1078 n.44. The court cited no authority for these
propositions. Nor did it acknowledge, never mind reconcile,
FOIA’s text and purpose.
In Wu v. National Endowment for Humanities, 460 F.2d
1030, 1032 (5th Cir. 1972), the Fifth Circuit cited Soucie’s
unsourced footnote to hold that Exemption 5 protected
evaluations prepared by outside experts for the National
Endowment for the Humanities. Wu reasoned that protecting
third-party communications furthered Exemption 5’s policy
of “encouraging full and candid intra-agency discussion, and
shielding from disclosure the mental processes of executive
and administrative officers.” Id. at 1034 (quoting Int’l Paper
Co. v. Fed. Power Comm’n, 438 F.2d 1349 (2d Cir. 1971)).
But, like Soucie, the opinion did not reconcile its holding
with FOIA’s broader policy favoring disclosure or
Exemption 5’s textual limits.
Together, Soucie and Wu form the basis for the
consultant corollary. Later opinions adopting the consultant
corollary cite to the two cases. See Hoover v. Dep’t of the
ROJAS V. FAA 17
Interior, 611 F.2d 1132, 1138 (5th Cir. 1980); Lead Indus.
Ass’n, Inc. v. OSHA, 610 F.2d 70, 83 (2d Cir. 1979); Ryan v.
Dep’t of Justice, 617 F.2d 781, 790 (D.C. Cir. 1970); Martin
Marietta Aluminum, Inc. v. Gen. Servs. Admin., 444 F. Supp.
945, 949 (C.D. Cal. 1977). Or, they cite to cases that in turn
cite Soucie and Wu. See Gov’t Land Bank v. Gen. Servs.
Admin., 671 F.2d 663, 665 (1st Cir. 1982) (citing Hoover,
611 F.2d at 1137–38). That other courts readily signed onto
the consultant corollary does not compensate for its shaky
foundation. And relying on the doctrine’s proliferation to
adopt it now would be the result of judicial inertia, rather
than reasoned consideration.
The Supreme Court acknowledged, but did not adopt, the
consultant corollary in the 2001 case Department of Interior
v. Klamath Water Users Protective Association. In Klamath,
the Court commented that “[a]lthough neither the terms of
the exemption nor the statutory definitions say anything
about communications with outsiders, some Courts of
Appeals have held that in some circumstances a document
prepared outside the Government may nevertheless qualify
as an ‘intra-agency’ memorandum under Exemption 5.” Id.
at 9 (citations omitted). The Court also quoted the dissent in
Department of Justice v. Julian, 486 U.S. 1 (1988), in which
Justice Scalia accepted the consultant corollary’s purposive
reading of Exemption 5:
It is textually possible and . . . in accord with
the purpose of the provision, to regard as an
intra-agency memorandum one that has been
received by an agency, to assist it in the
performance of its own functions, from a
person acting in a governmentally conferred
capacity other than on behalf of another
agency—e.g., in a capacity as employee or
18 ROJAS V. FAA
consultant to the agency, or as employee or
officer of another governmental unit (not an
agency) that is authorized or required to
provide advice to the agency.
Klamath, 532 U.S. at 9–10 (quoting Julian, 486 U.S. at 18
n.1 (Scalia, J., dissenting)). Curiously, the Klamath Court
did not discuss the propriety of the consultant corollary and
neither adopted nor rejected it.
Instead, the Court explained that the term “intra-agency”
in Exemption 5 is not “purely conclusory” and warned that
there is “no textual justification for draining the first
condition of independent vitality.” Id. at 12 (majority
opinion). The Court then narrowly held that, “at the least[,]”
the consultant corollary does not apply to communications
from interested parties who consult with the government for
their own benefit. Id. at 12, 12 n.4. In a footnote, the Court
admonished two D.C. Circuit opinions, Public Citizen, Inc.
v. Department of Justice, 111 F.3d 168 (D.C. Cir. 1997) and
Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir.
1980), as “instances of intra-agency consultants that
arguably extend beyond what we have characterized as the
typical examples.” Id. at 12 n.4. However, the Court
provided no further guidance as to the proper scope of
Exemption 5. Klamath, then, appears to instruct that courts
should be more rigorous in analyzing whether an outside
party’s records satisfy Exemption 5’s threshold “intra-
agency” requirement before analyzing whether the records
are privileged. See Hunton & Williams v. Dep’t of Justice,
590 F.3d 272, 283–84 (4th Cir. 2010) (describing that
Klamath requires the first step of Exemption 5 to be “more
carefully scrutinized”).
ROJAS V. FAA 19
Since the Supreme Court’s decision in Klamath, the
Fourth and Tenth Circuits have adopted the consultant
corollary. See Hanson v. USAID, 372 F.3d 286 (4th Cir.
2004); Stewart v. Dep’t of Interior, 554 F.3d 1236, 1245
(10th Cir. 2009). Most recently, though, the Sixth Circuit
rejected it in Lucaj v. Federal Bureau of Investigation,
852 F.3d 541 (6th Cir. 2017).
Lucaj concerned a FOIA request for documents that the
FBI had sent to foreign governments to secure their
assistance in investigating Lucaj’s role in political attacks in
Montenegro. Id. at 543–44. The FBI argued that the
documents were protected from disclosure under
Exemption 5 pursuant to the “common interest doctrine,”
which “permits parties whose legal interests coincide to
share privileged materials with one another in order to more
effectively prosecute or defend their claims.” Id. at 545
(quoting Hunton & Williams, 590 F.3d at 277–78). The Sixth
Circuit, relying on Klamath’s instruction that “the first
condition of Exemption 5 is no less important than the
second,” applied a strict statutory interpretation to conclude
that documents sent by a government agency to a foreign
government are neither “intra-” nor “inter-agency”
memoranda within the meaning of the Exemption. Id. at 547
(quoting Klamath, 532 U.S. at 9). The court then explicitly
rejected the consultant corollary as contrary to
Exemption 5’s plain text and the mandate to construe
FOIA’s exemptions narrowly. Id. at 549. In doing so, the
court relied on Klamath’s instruction not to ignore
Exemption 5’s threshold inquiry.
Lucaj reads Klamath’s focus on the threshold question
under Exemption 5 as essentially foreclosing the consultant
corollary. We disagree that Klamath can be interpreted so
conclusively. Rather, we understand Klamath as leaving
20 ROJAS V. FAA
open whether the consultant corollary is a proper application
of Exemption 5. We conclude that it is not. As described
above, the consultant corollary is contrary to Exemption 5’s
text and FOIA’s policy of broad disclosure, and its legal
foundation—the unsourced footnote in Soucie—is tenuous
at best. While the dissent is critical of the Sixth Circuit
decision, Lucaj provides a reasoned discussion of the
interplay between the consultant corollary, the language of
Exemption 5, and the purpose of FOIA. That is more than
can be said of Soucie and its progeny.
Proponents of the consultant corollary may argue that
rejecting it allows parties to use FOIA to circumvent civil
litigation privileges. Indeed, Congress enacted the
exemptions because it “realized that legitimate
governmental and private interests could be harmed by
release of certain types of information.” Abramson, 456 U.S.
at 621. Even so, full disclosure is the guiding principal in
interpreting FOIA. See Rose, 425 U.S. at 361. We are not
convinced that the potential harm to the government
warrants adopting the consultant corollary’s broad reading
of Exemption 5. While today’s holding means some
privileged documents from third-party consultants will be
subject to disclosure under FOIA, the dissent’s suggestion
that it will open the floodgates is speculative. And, absent
the consultant corollary, agencies can still avoid disclosure
under Exemption 5 by keeping potentially privileged
material within the government. If this proves unworkable,
as the dissent argues, the proper remedy lies with Congress,
not the courts.
Because we reject the consultant corollary, the records at
issue can no longer be considered “intra-agency” documents,
and Exemption 5 does not apply. Thus, we need not address
ROJAS V. FAA 21
whether the records would be privileged under Exemption
5’s second step.
C. Scope of the FOIA Request
Rojas challenges the district court and the FAA’s
interpretation of the scope of his FOIA request. Specifically,
Rojas argues that the FAA has an obligation under FOIA to
retrieve any responsive documents, such as the underlying
data to the summaries, held by APTMetrics. However, FOIA
places no such obligation on an agency.
FOIA empowers federal courts “to enjoin the agency
from withholding agency records and to order the production
of any agency records improperly withheld from the
complainant.” 5 U.S.C. § 552(a)(4)(B). As discussed above,
an agency is “any executive department, military
department, Government corporation, Government
controlled corporation, or other establishment in the
executive branch of the Government (including the
Executive Office of the President), or any independent
regulatory agency.” 5 U.S.C. § 552(f)(1). A “record” is “any
information that would be an agency record subject to the
requirements of this section when maintained by an agency
in any format, including an electronic format” along with
“any information . . . that is maintained for an agency by an
entity under Government contract, for the purposes of
records management.” 5 U.S.C. § 552(f)(2). FOIA does not
define “agency record.” See Forsham v. Harris, 445 U.S.
169, 178 (1980).
The Supreme Court has held that for a document to be an
“agency record” under FOIA, the agency must (1) “‘either
create or obtain’ the requested materials,” and (2) “the
agency must be in control of the requested materials at the
time the FOIA request is made.” Tax Analysts, 492 U.S.
22 ROJAS V. FAA
at 144–45 (quoting Forsham, 445 U.S. at 182). That an
agency has a right to obtain a document does not render the
document an agency record. Id. at 144. “FOIA applies to
records which have been in fact obtained, and not to records
which merely could have been obtained.” Id. (emphasis in
original) (quoting Forsham, 445 U.S. at 186).
To be sure, the bright line definition of agency records
as those “which have been in fact obtained” allows the
government to avoid disclosure by parking documents with
third parties. We share the concerns Justice Brennan
articulated when he dissented from the adoption of a bright
line definition. Specifically, Justice Brennan expressed that
the understandable tendency of agencies to
rely on nongovernmental grantees to perform
myriad projects distances the electorate from
important information by one more step. If
the records of such organizations, when
drawn directly into the regulatory process,
are immune from public inspection, then
government by secrecy must surely return.
Forsham, 445 U.S. at 191 (Brennan, J., dissenting). These
concerns are particularly pertinent in this case, which
involves a federal agency delegating its duty to establish
hiring criteria to an outside consultant. But we are bound by
the Supreme Court’s precedent. And under that precedent,
the records held by APTMetrics that have not been
transmitted to the FAA are beyond the reach of FOIA. That
the FAA is not obligated to search APTMetrics for
responsive documents does not relieve its duty to conduct a
reasonable search of its own records, as discussed above.
ROJAS V. FAA 23
CONCLUSION
The district court erred by entering summary judgment
in favor of the FAA. The FAA has not shown it conducted a
search reasonably calculated to uncover all relevant
documents in response to Rojas’s FOIA request, and we join
the Sixth Circuit in rejecting the consultant corollary to
Exemption 5. We REVERSE the judgment of the district
court and REMAND for further proceedings consistent with
this opinion. Rojas’s motion for judicial notice is DENIED.
CHRISTEN, Circuit Judge, concurring in part and dissenting
in part:
I agree with the majority that Rojas cannot use the
Freedom of Information Act (FOIA) to access materials that
the FAA does not actually possess, and I agree that the scope
of the FAA’s in-house search for responsive documents was
inadequate.
I disagree with the majority’s rejection of the “consultant
corollary”—a doctrine adopted by seven of our sister
circuits. The “consultant corollary” acknowledges that
Exemption 5’s protection of privileged documents extends
to materials prepared by an agency’s retained consultants.
This allows agencies to shield privileged materials from
disclosure to the same extent they would in discovery. By
rejecting the consultant corollary, the majority gives the
FOIA a truly capacious scope. After today, the fact that a
document was prepared in anticipation of litigation by a
government-retained consultant will present no barrier to
anyone who wants to access it by filing a FOIA request.
24 ROJAS V. FAA
Our court has not had an occasion to squarely address the
consultant corollary in a published opinion. Now that the
question is presented, we should follow the First, Second,
Fourth, Fifth, Eighth, Tenth, and D.C. Circuits, all of which
adopted the consultant corollary to shield work product
generated by the government’s outside consultants in
anticipation of litigation. 1 Because the majority’s decision
rejects the corollary, upends basic discovery rules, and
disregards the careful balance Congress struck when it
enacted the FOIA, I respectfully dissent.
***
The circumstances in which the present dispute arose
provide critical context for its resolution. In 2012, the FAA
undertook a comprehensive review of the Air Traffic Control
Specialist selection and hiring process and hired
APTMetrics, a human resource consulting firm, to assist in
that effort. APTMetrics modified a biographical assessment
tool the FAA used to test job-related characteristics. In
2014, the FAA implemented a refined process for selecting
air traffic controllers, incorporating APTMetrics’s
recommendations. Following the implementation of the
FAA’s new process, an unsuccessful applicant filed an Equal
Employment Opportunity Commission (EEOC) complaint,
seeking to represent a class of unsuccessful air traffic
controller applicants. That putative class is represented by
Mr. Rojas’s counsel. The FAA then revised the biographical
1
See Soucie v. David, 448 F.2d 1067, 1078 n.44 (D.C. Cir. 1971);
Gov’t Land Bank v. Gen. Serv. Admin., 671 F.2d 663, 666 (1st Cir. 1982);
Lead Indus. Ass’n Inc. v. OSHA, 610 F.2d 70, 83 (2nd Cir. 1979); Hanson
v. U.S. Agency for Int’l. Dev., 372 F.3d 286, 292–93 (4th Cir. 2004);
Hoover v. U.S. Dept. of the Interior, 611 F.2d 1132, 1137 (5th Cir. 1980);
Brockway v. Dept. of Air Force, 518 F.2d 1184, 1194 (8th Cir. 1982);
Stewart v. U.S. Dep’t of Interior, 554 F.3d 1236, 1245 (10th Cir. 2009).
ROJAS V. FAA 25
assessment for use in 2015, and APTMetrics worked on
those revisions.
Meanwhile, in anticipation of the pending EEOC
litigation, the FAA asked the Chief Operating Officer of
APTMetrics to prepare a summary of its validation work.
APTMetrics delivered an initial summary in December of
2014 and supplemented it the following month. By August
of 2015, a second group of unsuccessful applicants filed a
complaint and petition for class certification, this time
challenging the 2015 biographical assessment. The second
putative class is also represented by Mr. Rojas’s lawyer.
Mr. Rojas applied, but was not hired, to be an air traffic
control specialist in 2015. He later filed a FOIA request
seeking information about the biological assessment’s
empirical validation and its “evaluation and creation and
scoring.” 2 The FAA conducted a search and found three
documents that APTMetrics created at the FAA’s request
and in anticipation of litigating the EEOC complaints. The
FAA withheld the three documents pursuant to FOIA’s
Exemption 5, which exempts from disclosure “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 claimed the withheld
documents were protected attorney-client communications
and work product, and that they were pre-decisional and
deliberative.
2
Mr. Rojas’s request sought three categories of information, but the
parties stipulated that the only category at issue in this appeal is the
request for information regarding: “[T]he empirical validation of the
biographic assessment noted in the rejection notification,” including
“any report, created by, given to, or regarding APTMetrics’s evaluation
and creation and scoring of the assessment.”
26 ROJAS V. FAA
Mr. Rojas filed an administrative appeal and, eventually,
a complaint in district court challenging the denial of his
FOIA request. The district court conducted an in camera
review, ruled that the FAA’s search for records was
reasonable, and granted summary judgment in favor of the
government. The court described the withheld documents as
“summaries of [1] the [air traffic control] hiring process,
[2] the 2015 biographic assessment, and [3] the validation
process and results.”
Our review of the district court’s order granting
summary judgment is governed by several well-established
principles that the majority does not dispute. First, we know
that materials prepared in anticipation of litigation and at the
request of an attorney are protected work product and need
not be produced in litigation. See, e.g., Hickman v. Taylor,
329 U.S. 495, 510–11 (1947). Second, in the context of civil
discovery, we have long recognized that work-product
protection extends to materials created by consultants or
third-party experts. See, e.g., United States v. Nobles,
422 U.S. 225, 238 (1975); see also Fed. R. Civ. P. 26(b)(4)
(exempting draft expert reports, communications with expert
witnesses, and consulting experts materials from discovery).
Third, the Supreme Court has explained that FOIA’s
Exemption 5 precludes the disclosure of information that
would be privileged in litigation. See United States v. Weber
Aircraft Corp., 465 U.S. 792, 799–802 (1984) (explaining
that certain air crash safety investigation materials could be
withheld pursuant to FOIA’s Exemption 5 because courts
had previously recognized that those materials were
privileged in discovery). These principles alone dictate the
appropriate resolution in this case: because the validation
ROJAS V. FAA 27
summaries would not be available to Mr. Rojas in discovery,
he cannot acquire them through a FOIA request. 3
The majority concludes that Exemption 5 only shields
materials generated by federal agencies in-house, not those
created by the government’s retained consultants. Seven
other circuits have considered this argument and rejected it.
These circuits all adopted the “consultant corollary,”
agreeing that Exemption 5 reflects Congress’s determination
that the government is entitled to the same litigation
privileges afforded to other parties. Indeed, the propriety of
the consultant corollary was foreshadowed by well-
recognized precedent defining the scope and proper
application of litigation privileges and protections. The
Supreme Court has “consistently rejected” the suggestion
that parties in litigation with the government “can obtain
through the FOIA material that is normally privileged” or
use FOIA requests “to supplement civil discovery.” Id.
at 801–02 (“We do not think that Congress could have
intended that the weighty policies underlying discovery
privileges could be so easily circumvented.”). All of these
authorities lead to the conclusion that the FOIA does not
require federal agencies to produce retained experts’ work
product created in anticipation of litigation.
I.
Congress enacted the Freedom of Information Act in
1966 as a means of increasing transparency and broadening
access to government materials. “FOIA ‘sets forth a policy
3
The district court said the validation summaries were “inter-
agency memorandums,” but its reasoning (and supporting authority)
clearly related to “intra-agency” memoranda. For reasons explained
here, the withheld documents plainly qualify for Exemption 5 protection
as “intra-agency” memoranda.
28 ROJAS V. FAA
of broad disclosure of Government documents in order to
ensure an informed citizenry[.]’” Ante at 14 (quoting FBI v.
Abramson, 456 U.S. 615, 621 (1982)). But long before
Congress passed the FOIA, courts and legislatures
recognized that parties to litigation are entitled to shield
certain materials from discovery and disclosure. For
example, there is no question that litigants need not produce
materials covered by the attorney-client privilege or
documents that constitute attorney work-product, including
those prepared by the party’s agents and consultants. See,
e.g., Hickman, 329 U.S. at 510–11 (work product materials
are protected); Cont’l Oil Co. v. United States, 330 F.2d 347,
350 (9th Cir. 1964) (attorney-client privilege is protected);
Nobles, 422 U.S. at 238 (work product encompasses material
prepared by attorney’s investigators and other agents in
anticipation of litigation); see also Fed. R. Civ. P. 26(b)(4)
advisory committee’s note to the 1970 amendment.
Congress was well aware of discovery privileges when it
drafted the Freedom of Information Act, and it recognized
that certain exceptions to FOIA’s disclosure regime were
necessary in order for the government’s many agencies to
operate effectively. See S. Rep. No. 89-813, at 9 (1965)
(acknowledging that government efficiency “would be
greatly hampered” if agencies were “forced to ‘operate in a
fishbowl.’”). FOIA’s exemptions reflect careful balancing
between the benefits of transparency and the government’s
need to maintain the confidentiality of some types of records.
For example, FOIA exemptions allow federal agencies to
withhold classified materials (Exemption 1), trade secrets
(Exemption 4), and internal personnel and medical files
(Exemption 6). See generally 5 U.S.C. § 552(b)(1)–(9).
ROJAS V. FAA 29
Exemption 5 has been described as the most important
of FOIA’s exemptions. 4 It specifically precludes the
disclosure of inter- or intra-agency materials “that would not
be available by law” to adverse parties in litigation. 5 U.S.C.
§ 552(b)(5); see Weber, 465 U.S. at 801. Rojas does not
dispute that Exemption 5 shields attorney work-product
created by government agency staff, and this concession is
not surprising. There was nothing novel about Exemption
5’s carve out; without it, the FOIA would have obliterated a
common law rule dating back decades. F.T.C. v. Grolier
Inc., 462 U.S. 19, 20 (1983) (“It is well established that this
exemption was intended to encompass the attorney work-
product rule.”).
Given this backdrop, the resolution of Rojas’s appeal
should be straightforward: he is not entitled to the
APTMetrics documents because the FAA’s consultant
prepared them at the FAA’s request, and in anticipation of
litigation. This result would be the same whether the
materials were prepared by an FAA employee sitting in an
FAA cubicle, or by a consultant hired to do the same thing.
We need look no further than Exemption 5 to know that the
FAA was not required to disclose the three withheld
documents. See 5 U.S.C. § 552(b)(5).
II.
The majority reviews the text of Exemption 5, decides
that consultants do not qualify as “agencies,” and concludes
that FAA’s consultant-prepared materials are not “intra-
4
See 33 Fed. Prac. & Proc. Judicial Review § 8441 (1st ed.) (“The
Freedom of Information Act provides nine exemptions from the
disclosure requirements. . . . These are, in order of importance, 5, 7, 1, 3,
and 2.”).
30 ROJAS V. FAA
agency memorandums” within the scope of Exemption 5.
See Ante at 13.
I read the statute differently. Exemption 5 states that
FOIA’s disclosure requirement “does not apply” to “inter-
agency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in
litigation with the agency[.]” 5 U.S.C. § 552(b)(5). The
Supreme Court has explained that the phrases “an agency”
and “the agency” in Exemption 5 refer to the same entity.
See Weber, 465 U.S. at 798 (explaining that a plaintiff could
not access privileged documents through a FOIA request
because “they would not be available by law to a party other
than [the Air Force] in litigation with [the Air Force].”)
(alternation in original) (internal quotation marks omitted).
Nothing in Exemption 5’s text requires that the materials
be created by the agency itself, nor do the statute’s
definitions dictate that an “intra-agency memorandum”
includes only those materials that agency employees (as
opposed to retained consultants) prepare in-house. Here, the
FAA specifically engaged APTMetrics to use its expertise to
create biometric summaries on behalf of the FAA. The FAA
took possession, reviewed and relied on the summaries, then
stored and maintained them. For all intents and purposes,
the three withheld documents are the FAA’s memoranda and
we should treat them just as we would treat a memorandum
created by an internal FAA employee.
An agent acts “on the principal’s behalf,” meaning the
agent’s acts are the principal’s acts. See Agency, Black’s
Law Dictionary (10th ed. 2014). The nature of an agent-
principal relationship requires that the “agent’s actions have
legal consequences for the principal[,]” id., and we have
recognized that consultants are agents whose statements can
bind their paying clients. See Reid Bros. Logging Co. v.
ROJAS V. FAA 31
Ketchikan Pulp Co., 699 F.2d 1292, 1306 (9th Cir. 1983)
(finding that a consultant’s report, distributed to a party in
litigation, was properly introduced as a party admission
under Fed. R. Evid. 801(d)(2)(C)). Because the FAA
retained APTMetrics as a consultant and paid it to prepare
the sought-after biometric assessment summaries in
anticipation of class action litigation, those summaries
should be treated as if FAA employees prepared them.
Unless we ignore the entirety of the statute, its legislative
history, analogous case law, and controlling case law
addressing the limits of permissible discovery, the
documents must be afforded Exemption 5 protection.
The actual text of Exemption 5 easily encompasses the
requested materials because Exemption 5 protects “intra-
agency memorandums[.]” Of course, “intra” simply means
“within,” see intra, The American Heritage Dictionary of the
English Language (1978), and we know that the FAA paid
APTMetrics to prepare the summaries on its behalf. The
agency received the summaries, and as far as we can tell it
has been maintaining and storing them ever since. The
responsive documents are therefore “within” the FAA in
both a physical and proprietary sense, so the FAA’s
consultant-created memoranda are “intra-agency
memorandums,” strictly and textually speaking.
FOIA’s broader statutory framework also indicates that
the FAA’s consultant-prepared materials are entitled to
Exemption 5’s protection. The FOIA defines “record” and
explains that the materials that would qualify as “an agency
record” include information “maintained by an agency in
any format[.]” 5 U.S.C. § 552(f)(2). This is consistent with
the Supreme Court’s opinion in Forsham v. Harris, where
the Court defined FOIA’s “agency records” (through
reference to similar statutes) as materials “made or received
32 ROJAS V. FAA
by an agency[,]” and “created or received” by the
government. 445 U.S. 169, 182–86 (1980) (emphasis in
original). Forsham further explained that “[t]he legislative
history of the FOIA abounds with other references to records
acquired by an agency.” Id. at 184 (emphasis added). There
is no dispute that the FAA received APTMetrics’s
summaries and that it remains in possession of them. As
such, those summaries necessarily constitute “agency
records” pursuant to FOIA’s definitions.
Today’s opinion divorces “agency records” from “intra-
agency memorandums,” and reaches the paradoxical
conclusion that the three withheld documents are not “intra-
agency memorandums” even though they certainly fall
within the definition of “agency records.” It is difficult to
conjure an adequate rationale or a holistic reading of the
statutory text by which all “agency records” fall within
FOIA’s scope but only an arbitrary subset of privileged
“agency records” are protected by Exemption 5.
In the majority’s view, the consultant corollary ignores
FOIA’s distinction between intra- and inter-agency
materials. Ante at 13–14. But distinguishing between those
two categories is simple if the consultant corollary is
properly applied: Exemption 5 encompasses materials
prepared in-house or by an agency’s consultant, and the
materials are either “intra-“ or “inter-agency” depending on
whether they are shared outside the agency.
Parties engaged in litigation with the government will
use today’s ruling to circumvent the government’s claims of
work product, attorney-client communication or any other
privilege recognized by our discovery rules, even though the
federal rules expressly bar discovery into those kinds of
materials, see Fed. R. Civ. P. 26(b)(4)(D), and despite the
long-established rule that the government is entitled to the
ROJAS V. FAA 33
same litigation privileges as other parties. In re Lindsey,
158 F.3d 1263, 1269 (D.C. Cir. 1998) (“Congress intended
that agencies should not lose the protection traditionally
afforded through the evidentiary privileges simply because
of the passage of the FOIA.”) 5; NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 154 (1975) (“It is equally clear that
Congress had the attorney’s work-product privilege
specifically in mind when it adopted Exemption 5 and that
such a privilege had been recognized in the civil discovery
context by the prior case law.”).
Today’s decision only disadvantages the government;
the privileges afforded to non-government parties will
remain intact because only the government responds to
FOIA requests. Thus, the decision simultaneously puts the
government at a stark litigation disadvantage, departs from
the Supreme Court’s observation that “Exemption 5 simply
incorporates civil discovery privileges[,]” including those
“well recognized in the case law[,]” Weber, 465 U.S. at 799,
and disregards a clear congressional directive that the
government should receive the same discovery privileges as
other parties.
Notwithstanding these concerns, the majority rejects the
corollary because it is “not convinced that the potential harm
to the government warrants adopting the consultant
corollary’s broad reading of Exemption 5.” Ante at 20.
Respectfully, this is insufficient in light of the decades-long
track record of courts uniformly upholding the government’s
discovery privileges, which Congress expressly preserved
by adopting Exemption 5. See Weber, 465 U.S. at 801 (“We
5
Quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d
854, 862 (D.C. Cir. 1980).
34 ROJAS V. FAA
do not think that Congress could have so easily intended that
the weighty policies underlying discovery privileges could
be [] easily circumvented [through a FOIA request]”). 6
The majority suggests that “absent the consultant
corollary, agencies can still avoid disclosure under
Exemption 5 by keeping potentially privileged material
within the government.” Ante at 20. But that suggestion has
it backwards. The government is keeping APTMetrics’s
work product, which is why the materials fall within the
scope of the search for responsive documents. If the
documents were only possessed by APTMetrics, they would
not be subject to the FOIA at all. Forsham, 445 U.S. at 186.
If the majority means that agencies can avoid disclosure by
creating materials in-house, that theory fails to acknowledge
that dozens of federal agencies must rely on the expertise of
outside consultants to perform specialized tasks.
Regrettably, today’s opinion will likely dissuade agencies
from seeking helpful expertise from outside consultants in
the first place.
III.
There is nothing new or novel about the consultant
corollary, as evidenced by the dearth of case law supporting
today’s decision. Circuit courts have been applying the
consultant corollary since at least 1971. Just five years after
Congress enacted the FOIA, the D.C. Circuit adopted the
consultant corollary in Soucie v. David, 448 F.2d 1067, 1078
n.44 (D.C. Cir. 1971) (explaining that an outside expert’s
6
Curiously, the majority quotes Weber to justify its approach.
Ante at 14. But Weber is hardly supportive of the majority’s analysis.
Indeed, contrary to the majority’s holding here, Weber explained that the
plain language of Exemption 5 incorporated discovery privileges and
allowed agencies to shield privileged materials. 465 U.S. at 799–801.
ROJAS V. FAA 35
report should “be treated as an intra-agency memorandum of
the agency which solicited it” for purposes of Exemption 5).
Since that decision, the First, Second, Fourth, Fifth, Eighth,
and Tenth Circuits have adopted the consultant corollary.
See Gov’t Land Bank v. Gen. Serv. Admin., 671 F.2d 663,
666 (1st Cir. 1982) (exempting from FOIA disclosure a
property appraisal performed by independent contractor);
Lead Indus. Ass’n Inc. v. OSHA, 610 F.2d 70, 83 (2nd Cir.
1979) (exempting from FOIA disclosure private consultant’s
analysis of lead levels provided to agency); Hanson v. U.S.
Agency for Int’l. Dev., 372 F.3d 286, 292–93 (4th Cir. 2004)
(exempting from FOIA disclosure a document prepared by
outside attorney as attorney work product); Hoover v. U.S.
Dept. of the Interior, 611 F.2d 1132, 1137 (5th Cir. 1980)
(holding that an appraisal report by an outside expert
constituted an intra-agency document for purposes of
Exemption 5); Brockway v. Dept. of Air Force, 518 F.2d
1184, 1194 (8th Cir. 1982) (exempting from FOIA
disclosure statements provided to agency by outside
witnesses due to pre-trial privilege); Stewart v. U.S. Dep’t of
Interior, 554 F.3d 1236, 1245 (10th Cir. 2009) (holding that
consultant’s materials were properly withheld pursuant to
Exemption 5 because “[f]or purposes of [a FOIA] analysis”
the consultant “functioned akin to an agency employee”).
The majority criticizes the first consultant corollary case,
Soucie v. David, for failing to cite supportive authority for
the consultant corollary, ante at 15–16, but Soucie was a case
of first impression. See Fong v. Immigration &
Naturalization Serv., 308 F.2d 191, 194 (9th Cir. 1962)
(“The case is one of first impression and neither party has
been able to cite cases or decisions in point.”). More
importantly, the majority never rebuts the reasoning seven
of our sister circuits have proffered to justify this corollary
to Exemption 5—i.e., that “[t]he Government may have a
36 ROJAS V. FAA
special need for the opinions and recommendations of
temporary consultants, and those individuals should be able
to give their judgments freely without fear of publicity.”
Soucie, 448 F.2d at 1078 n.44. Nor could it. In the context
of civil discovery, courts have long accepted that agencies
benefit from the assistance of outside experts and that the
unnecessary risk of disclosure may put a damper on the
government’s ability to acquire the knowledge and expertise
it requires. See, e.g., CNA Fin. Corp. v. Donovan, 830 F.2d
1132, 1162 (D.C. Cir. 1987) (“[F]ederal agencies
occasionally will encounter problems outside their ken, and
it clearly is preferable that they enlist the help of outside
experts skilled at unravelling their knotty complexities. . . .
To force an exposure is to stifle honest and frank
communication between agency and expert by inhibiting
their free exchange of thought”) (internal quotation marks
omitted); 37A Am. Jur. 2d Freedom of Information Act
§ 182 (2019) (“Agencies have a special need for the opinions
and advice of temporary consultants, and the quality of
consultants’ advice, like that of agency employees, may
suffer if the advice is made public.”). This case is a good
example. It is doubtful that decision makers at the FAA
would have engaged in a full and candid conversation about
the efficacy of the biometric assessment or ways it might be
improved if they were aware that their communications
would be subject to disclosure in the prospective class action
litigation. And there is no question the public is best served
if the most refined selection criteria are used to choose
applicants best qualified to perform the exquisitely sensitive
positions held by air traffic controllers. 7
7
The fact that consultant-prepared materials may constitute “intra-
agency memorandums” for purposes of Exemption 5 does not mean that
agencies are obligated to search for responsive FOIA materials held only
ROJAS V. FAA 37
The only circuit to express doubt about the consultant
corollary is the Sixth Circuit. In Lucaj v. Federal Bureau of
Investigation, 852 F.3d 541, 546–47 (6th Cir. 2017), the
Sixth Circuit seemed to reject the rule, except there were no
consultants at issue in Lucaj. The plaintiff in Lucaj was
arrested in Montenegro, and the FBI believed that he was
connected to terrorist attacks. Id. at 543. Because Lucaj
believed the United States played a role in his arrest, he sent
a FOIA request to the FBI. Id. at 543–44. The FBI produced
some responsive documents, but it withheld two that the
Department of Justice had sent to foreign law enforcement
agencies. Id. at 544–45. The Sixth Circuit rejected the FBI’s
claim that the documents were exempted from the FOIA and
ordered them produced. In the process of issuing this ruling,
the Sixth Circuit purported to reject the consultant corollary,
id. at 546–47, but because no consultants or consultant-
created materials were at issue in Lucaj, its brief rejection of
the consultant corollary can only be regarded as dictum.
Notably, the majority is conspicuously wary of Lucaj, see
ante at 19 (disagreeing with Lucaj’s review of applicable
Supreme Court precedent), but it subscribes to the same
“plain text” interpretation of “intra-agency” that the Sixth
by consultants. As the majority explains, the Supreme Court’s decision
in Forsham v. Harris forecloses Rojas’s challenge to the FAA’s failure
to search APTMetrics’s files in response to his FOIA request. I share
the majority’s concern about the possibility that the FOIA could be
circumvented by storing materials offsite with agency contractors. But
I agree with the majority that we are bound by Forsham, and it dictates
that Rojas cannot access APTMetrics’s offsite documents through a
FOIA request.
I also agree with the majority’s conclusion that the FAA has failed
to show that it undertook an adequate in-house search. See Ante at 8–11.
However, the proper scope of a FOIA search is distinct from whether
materials falling within that scope may be exempted from disclosure.
38 ROJAS V. FAA
Circuit endorsed. By relying on a conclusion that was
merely dictum in Lucaj, today’s opinion creates a circuit
split.
The majority also cites Department of Interior v.
Klamath Water Users Protective Association, 532 U.S. 1
(2001), but that case lends no support to its position. In
Klamath, the dispute involved competing claims by the
Klamath Tribe and others to certain water rights. Id. at 5–6.
The federal government solicited the Klamath Tribe’s input
on a potential global resolution. Id. Other litigants sought
access to the Klamath Tribe’s memorandum via the FOIA,
and on appeal the Court considered whether the Department
of Interior could rely on Exemption 5 and the consultant
corollary to withhold it. Id. at 6–7. The Court rejected the
Department’s claim that it could withhold the Tribe’s
settlement proposal under Exemption 5—but not because it
rejected the consultant corollary. On the contrary, the Court
acknowledged that in the cases where courts have applied
the consultant corollary, “the records submitted by outside
consultants played essentially the same part in an agency’s
process of deliberation as documents prepared by agency
personnel might have done.” Id. at 10. The Court went on
to recognize that in those circumstances “consultants may be
enough like the agency’s own personnel to justify calling
their communications ‘intra-agency.’” Id. at 12. Ultimately,
the Court rejected the Department of Interior’s claimed
exemption because the Tribe was decidedly not acting on the
government’s behalf. Far from it, the Tribe was an interested
party advocating for its own interests. Id. at 11–15. Klamath
is more a benediction of the consultant corollary than an
indictment—after all, the question whether the corollary is
correct is antecedent to whether it applies in a particular
situation. Indeed, at least one circuit reads Klamath as the
Court’s tacit affirmance of the consultant corollary. See
ROJAS V. FAA 39
Stewart, 554 F.3d at 1244 (“In Klamath, after recognizing
that Exemption 5 extends to government agency
communications with paid consultants, the Court declined to
analogize tribal communications to consultant
communications.”).
At bottom, though seven circuit courts have expressly
adopted the consultant corollary and the Supreme Court’s
Klamath decision has responded favorably (albeit implicitly)
to the rule, only one other circuit has rejected the corollary,
in dictum. Against that ledger, the majority marshals a
crimped view of the term “intra-agency” and reaches a
conclusion that casts aside the need to read the FOIA as an
integrated whole, as well as decades of persuasive authority.
IV.
Today’s opinion creates a lopsided loophole that
prejudices only the federal government. Weber, 465 U.S. at
801. The consultant corollary fits logically with the text and
purpose of the FOIA and ensures that government agencies
can appropriately shield privileged and sensitive materials
from FOIA responses, just as they would in discovery. I
would adopt the consultant corollary, and respectfully
dissent from the majority’s decision.