Jorge Rojas v. Faa

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.