Petition for Writ of Certiorari — Jorge Alejandro Rojas, Petitioner v. Federal Aviation Administration

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APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE ALEJANDRO

ROJAS,

Plaintiff-Appellant,

v.

No. 17-55036

D.C. No. 2:15-cv05811-CBM-SS

OPINION

FEDERAL AVIATION

ADMINISTRATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted En Banc September 22, 2020

San Francisco, California

March 2, 2021

Before: Sidney R. Thomas, Chief Judge, and Susan

P. Graber, Kim McLane Wardlaw, Johnnie B.

Rawlinson, Consuelo M. Callahan, Milan D. Smith,

Jr., Sandra S. Ikuta, Paul J. Watford, Andrew D.

Hurwitz, Daniel P. Collins, and Patrick J. Bumatay,

Circuit Judges.

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Opinion by Judge Watford;

Concurrence by Judge Collins;

Partial Concurrence and Partial Dissent by Judge

Wardlaw;

Partial Concurrence and Partial Dissent by

Chief Judge Thomas;

Partial Dissent by Judge Ikuta;

Partial Concurrence and Partial Dissent by Judge

Bumatay

SUMMARY*

Freedom of Information Act

The en banc court affirmed in part and vacated in

part the district court’s summary judgment in favor of

the Federal Aviation Administration (“FAA”) in a

plaintiff’s Freedom of Information Act (“FOIA”) action

seeking FAA agency records.

FOIA’s Exemption 5 provides that FOIA’s disclosure requirements do not apply to “inter-agency or intra-agency memorandums or letters that would not be

available by law to a party … in litigation with the

agency.” 5 U.S.C. § 552(b)(5). The FAA’s Office of

Chief Counsel informed plaintiff that it was withholding three documents from his FOIA requests under

Exemption 5. The validation documents that the FAA

* This summary constitutes no part of the opinion of the

court. It has been prepared by court staff for the convenience of

the reader.

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sought to withhold were prepared by an outside consultant rather than by an FAA employee.

The en banc court joined six sister circuits that

have recognized some version of the consultant corollary to Exemption 5, and held that the term “intraagency” in § 552(b)(5) included, at least in some circumstances, documents prepared by outside consultants hired by the agency to assist in carrying out the

agency’s functions. The court held that the relevant

inquiry asks whether the consultant acted in a capacity functionally equivalent to that of an agency in creating the document or documents the agency sought

to withhold.

Applying these principles, the en banc court concluded that the consultant, APTMetrics, created the

three documents at issue while performing work in

the same capacity as an employee of the FAA. APTMetrics represented neither its own interests nor

those of any other client in carrying out its work, and

it did not share the documents with anyone outside

the FAA’s Office of Chief Counsel. With respect to the

preparation of the documents, APTMetrics was operating enough like the FAA’s own employees to justify

calling its own communications with the FAA “intraagency.”

Because the documents at issue qualified as intraagency memorandums, the en banc court next considered whether they satisfied Exemption 5’s second requirement that the documents “would not be available by law to a party … in litigation with the agency.”

5 U.S.C. § 552(b)(5). The court, agreeing with the district court, held that two of the three documents listed

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in the Vaughn index were protected by the attorney

work-product privilege and thus could not be subject

to discovery in civil litigation with the FAA. A remand, however, was necessary to determine whether

the third document was also protected by privilege;

and the court vacated the district court’s summary

judgment for the FAA as to the third document.

The en banc court addressed plaintiff’s arguments

concerning the adequacy of the FAA’s search for responsive documents. First, the court held that Supreme Court precedent foreclosed plaintiff’s contention that the FAA should have been required to search

APTMetrics’ records for documents responsive to his

FOIA request. Second, the court held that the declarations submitted by the FAA failed to show that it

conducted a search reasonably conducted to uncover

all relevant documents.

The en banc court remanded for further proceedings.

Judge Collins joined in the majority opinion that

adopted the reading of Exemption 5 endorsed by Justice Scalia in his dissenting opinion in U.S. Department of Justice v. Julian, 486 U.S. 1 (1988), and wrote

separately to respond to the dissents’ erroneous contentions that Justice Scalia’s reading of Exemption 5

was “atextual.”

Judge Wardlaw, joined by Chief Judge Thomas

and Judge Hurwitz, concurred in part and dissented

in part. Judge Wardlaw would hold that Exemption 5’s text is crystal clear: documents or communications exchanged with outside consultants do not fall

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within that exemption. She agreed with the majority

that the FAA’s search for records was inadequate, and

joined part III of the majority opinion.

Chief Judge Thomas concurred in part and dissented in part. He joined Judge Wardlaw’s dissent in

full, and also agreed with the majority opinion’s holding that the FAA did not meet its burden to show that

it conducted an adequate search for documents responsive to plaintiff’s FOIA request. He wrote separately to observe that, even if the consultant corollary

formed part of Exemption 5, it would not protect the

specific information sought in this case because the

information was required to be maintained and made

publicly available by the agency.

Judge Ikuta, joined by Judges Graber and Callahan, and joined by Judge Bumatay except as to footnote 1, dissented in part. Judge Ikuta disagreed with

the majority’s conclusion that the declaration submitted by the FAA failed to show that the agency conducted a search reasonably calculated to uncover all

relevant documents in response to the FOIA request.

In footnote 1, Judge Ikuta stated that she agreed with

the majority’s interpretation of “intra-agency memorandums or letters” to include documents prepared by

outside consultants hired by the agency to assist its

functions, and she would affirm the summary judgment for the FAA as to the first two withheld documents, and reverse as to the third document for the

reasons stated in the majority opinion.

Judge Bumatay concurred in part and dissented

in part. He would hold that FOIA Exemption 5 does

not cover consultant work product, and by its plain

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text, it does not protect APTMetric’s documents from

disclosure. He agreed with the majority that the FAA

was not required to search APTMetric’s records for responsive documents, but agreed with Judge Ikuta’s

dissent that the majority was incorrect in finding that

FAA’s search was inadequate.

COUNSEL

Naomi J. Scotten (argued), Orrick Herrington & Sutcliffe LLP, New York, New York; Michael W. Pearson,

Curry Pearson & Wooten PLC, Phoenix, Arizona;

Robert M. Loeb and Thomas M. Bondy, Orrick Herrington & Sutcliffe LLP, Washington, D.C.; for Plaintiff-Appellant.

Jeffrey E. Sandberg (argued), and Mark B. Stern, Appellate Staff; Hashim M. Mooppan, Deputy Assistant

Attorney General, Washington, D.C.; Alarice M.

Medrano, Assistant United States Attorney; Dorothy

A. Schouten, Chief, Civil Division; United States Attorney’s Office, Los Angeles, California; for Defendant-Appellee.

Katie Townsend, Caitlin Vogus, Adam A. Marshall,

Gunita Singh, and Daniel J. Leon, Reporters Committee for Freedom of the Press, Washington, D.C., for

Amici Curiae Reporters Committee for Freedom of

the Press and 24 Media Organizations.

Gregg P. Leslie, Samuel Turner, and John Dragovits,

First Amendment Clinic, Arizona State University,

Sandra Day O’Connor College of Law, Phoenix, Arizona, for Amicus Curiae Project on Government Oversight.

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OPINION

WATFORD, Circuit Judge:

To ensure greater transparency in the operation

of government agencies, the Freedom of Information

Act (FOIA) mandates disclosure of nearly all agency

records upon request, unless the records fall within

one of nine exemptions specified in the Act. See

5 U.S.C. § 552(b)(1)-(9); NLRB v. Sears, Roebuck &

Co., 421 U.S. 132, 136 (1975). This case involves Exemption 5, which provides that FOIA’s disclosure requirements do not apply to “inter-agency or intraagency 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 main question before us is what the term “intra-agency” means in this

context. Does a document qualify as “intra-agency”

only if the author and recipient are employees of the

same agency? Or does the term also include, at least

in some circumstances, documents prepared by outside consultants hired by the agency to assist in carrying out the agency’s functions? We join six of our

sister circuits in adopting the latter reading of “intraagency,” dubbed by some the “consultant corollary” to

Exemption 5.

I

The plaintiff in this case is Jorge Alejandro Rojas.

In March 2015, Rojas applied to the Federal Aviation

Administration (FAA) for an entry-level position as

an air traffic controller. As part of the application process, he took a computerized test designed to measure

certain attributes deemed relevant to success in the

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position, such as self-confidence, stress tolerance, and

teamwork. The parties refer to this test as the “biographical assessment.” The FAA rejected Rojas’s application in a notice that stated the following: “Based

upon your responses to the Biographical Assessment,

we have determined that you are NOT eligible for this

position as a part of the current vacancy announcement.” The notice informed Rojas that the biographical assessment measures “job applicant characteristics that have been shown empirically to predict success as an air traffic controller,” and stated that the

test “was independently validated by outside experts.”

Rojas understandably wanted to learn more about

the FAA’s use of the biographical assessment as a selection tool—in particular, whether the test had been

empirically validated (that is, shown to have the

power to predict successful job performance) as the

FAA claimed. At the time, little was known about the

test, as it had been deployed for the first time during

the previous year’s hiring cycle, in February 2014, at

the recommendation of an outside consulting firm

called APTMetrics. The FAA had hired the firm in

2012 to review the agency’s hiring process, to propose

recommendations for improvement, and to assist the

agency in implementing those improvements. APTMetrics developed the biographical assessment as

part of that work and, after its debut during the 2014

hiring cycle, revised the test for use in the upcoming

2015 hiring cycle. In early fall of 2014, APTMetrics

performed validation work on the revised 2015 version of the test, work that presumably formed the basis for the FAA’s claim that the test had been “independently validated by outside experts.”

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Under FOIA, Rojas asked the FAA to produce documents containing “information regarding the empirical validation of the biographical assessment” mentioned in his rejection notice, including “any report

created by, given to, or regarding APTMetrics’ evaluation and creation and scoring of the assessment.”

The FAA assigned Rojas’s request to four different offices within the agency: Air Traffic Organization, FOIA Program Management Branch, Office of

Human Resources, and the Employment and Labor

Law Division of the Office of the Chief Counsel. The

Office of Human Resources informed Rojas that it had

found responsive documents relating to empirical validation of the biographical assessment but was withholding those documents under Exemption 5. The Office of the Chief Counsel similarly informed Rojas that

it had located responsive documents but was withholding them under Exemption 5 as well. Following

Rojas’s administrative appeal of that decision, the Office of the Chief Counsel realized that its search had

mistakenly focused on the 2014 biographical assessment, rather than on the 2015 version of the test that

was the subject of Rojas’s FOIA request. The office

conducted a second search, which produced the three

documents at issue in this appeal. The FAA informed

Rojas that it was withholding all three documents under Exemption 5.

Rojas sued the FAA under FOIA, which authorizes district courts “to enjoin [an] 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). For reasons

that are unclear from the record, Rojas’s suit does not

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challenge the Office of Human Resources’ withholding

of documents under Exemption 5. He challenges only

the Office of the Chief Counsel’s decision to withhold

documents under that exemption.

The FAA bears the burden of establishing that the

documents it seeks to withhold are covered by Exemption 5. See 5 U.S.C. § 552(a)(4)(B); Lahr v. National

Transportation Safety Board, 569 F.3d 964, 973 (9th

Cir. 2009). The FAA sought to meet that burden by

submitting a “Vaughn index,” a document that identifies the records being withheld, the exemption invoked to justify withholding, and the reason why each

document is subject to the claimed exemption. See

Hamdan v. Department of Justice, 797 F.3d 759, 769

n.4 (9th Cir. 2015) (citing Vaughn v. Rosen, 484 F.2d

820 (D.C. Cir. 1973)). The FAA’s Vaughn index described the three documents at issue here. For each,

the FAA identified APTMetrics as the sender and the

FAA’s Office of the Chief Counsel as the recipient;

stated that the documents’ subject matter was development and validation of the 2015 biographical assessment; invoked Exemption 5 as the ground for

withholding; and explained that the documents had

been prepared by APTMetrics at the request of lawyers in the Office of the Chief Counsel in anticipation

of litigation.

The FAA submitted two declarations providing

factual support for its claim that the documents had

been prepared in anticipation of litigation and were

therefore protected by the attorney work-product

privilege. A declaration from a lawyer in the FAA’s

Office of the Chief Counsel explained that in April

2014, after the agency’s use of the biographical

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assessment during the 2014 hiring cycle, an unsuccessful applicant filed a putative class action against

the agency alleging discrimination. In November

2014, the Office of the Chief Counsel asked the Chief

Operating Officer of APTMetrics, John Scott, “to summarize elements of his validation work” related to the

revised version of the biographical assessment that

the agency planned to use during the upcoming 2015

hiring cycle. Scott provided summaries of his validation work in December 2014 and January 2015. According to the declaration, those summaries “were

prepared solely at the request and direction of the Office of the Chief Counsel and were not shared with

other elements of the [FAA] outside of the Office of the

Chief Counsel.” Mr. Scott submitted a declaration of

his own confirming that APTMetrics had prepared

“summaries and explanations” of its validation work

at the request of lawyers in the Office of the Chief

Counsel.

On the basis of the Vaughn index and supporting

declarations, the FAA moved for summary judgment.

After reviewing the three documents in camera, as

FOIA permits, see 5 U.S.C. § 552(a)(4)(B), the district

court granted summary judgment for the FAA. The

court held that the documents were properly subject

to withholding under Exemption 5 and rejected Rojas’s challenges to the adequacy of the agency’s search

for responsive documents.

A three-judge panel of our court reversed. Rojas v.

FAA, 927 F.3d 1046 (9th Cir. 2019). The panel divided

on the question whether the documents at issue are

covered by Exemption 5. Over Judge Christen’s dissent, a majority of the panel held that they are not.

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The majority declined to adopt the consultant corollary to Exemption 5, which it regarded as inconsistent

with the statute’s plain text and FOIA’s general policy

of fostering broad disclosure of agency records. Id. at

1055-58. Because the validation documents the FAA

sought to withhold were prepared by an outside consultant rather than by an FAA employee, the majority

concluded that the documents do not qualify as “intraagency memorandums.” Id. at 1058. The panel also

held, unanimously, that while the FAA was not obligated to search APTMetrics’ records in response to

Rojas’s FOIA request, the agency failed to establish

that the search it conducted of its own records was

reasonably calculated to locate all responsive documents. Id. at 1053-54, 1059 (majority opinion); id. at

1060 (Christen, J., concurring in part and dissenting

in part). Thus, the panel reversed the district court’s

entry of summary judgment in the FAA’s favor. Id. at

1059-60.

A majority of the non-recused active judges voted

to rehear the case en banc, principally to decide

whether our circuit should adopt or reject the consultant corollary to Exemption 5.

II1

Exemption 5 permits an agency to withhold “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).

Judges Graber, Rawlinson, Callahan, M. Smith, Ikuta,

and Collins join in this part of the majority opinion.

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Successful invocation of the exemption requires an

agency to show that a document (1) is “inter-agency”

or “intra-agency” in character, and (2) consists of material that would be protected as privileged in the civil

discovery context. Sears, 421 U.S. at 149. We address

each of these requirements in turn.

A

APTMetrics is not a federal agency in its own

right, see 5 U.S.C. §§ 551(1), 552(f)(1), so the three

documents it prepared and sent to the FAA cannot be

deemed “inter-agency” memorandums. At first blush,

documents prepared by APTMetrics would not appear

to qualify as “intra-agency” memorandums either.

“Intra” means “within,” and read in isolation, “the

most natural meaning of the phrase ‘intra-agency

memorandum’ is a memorandum that is addressed

both to and from employees of a single agency.” Department of Justice v. Julian, 486 U.S. 1, 18 n.1 (1988)

(Scalia, J., dissenting). But as is always true when interpreting statutes, statutory context and purpose

matter, and here we think context and purpose suggest that Congress had in mind a somewhat broader

understanding of “intra-agency.”

Read in context, the term “intra-agency” in Exemption 5 does not definitively resolve the interpretive question before us. Even accepting that “intraagency” refers in this context to a document generated

and kept in-house, that still does not tell us who

counts as being in-house for purposes of the exemption’s reach. The term could be read as requiring that

both the author and recipient of the document be employees on the agency’s payroll. But it could just as

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plausibly be read to include certain outside consultants whom the agency has hired to work in a capacity

functionally equivalent to that of an agency employee.

Deciding which of these two interpretations of “intra-agency” Congress had in mind should be informed, in our view, by consideration of the purposes

served by Exemption 5. The exemption protects an

agency’s internal communications (as well as communications with other agencies) if those communications would be protected by one of the civil discovery

privileges, such as the attorney-client privilege, the

attorney work-product privilege, or the deliberative

process privilege. See Sears, 421 U.S. at 149. Congress

concluded that shielding privileged communications

from disclosure was desirable because “the ‘frank discussion of legal or policy matters’ in writing might be

inhibited if the discussion were made public,” with the

consequence that the quality of an agency’s decisions

and policies “would be the poorer as a result.” Id. at

150 (quoting S. Rep. No. 89-813, at 9 (1965)). In the

same vein, the Court observed in Sears that “those

who expect public dissemination of their remarks may

well temper candor with a concern for appearances …

to the detriment of the decisionmaking process.” Id.

at 150-51 (quoting United States v. Nixon, 418 U.S.

683, 705 (1974)) (emphasis omitted). In addition,

without the protection afforded by Exemption 5, an

agency’s litigation opponents could obtain under

FOIA the same privileged communications they were

barred from obtaining under civil discovery rules.

Asked whether the statute created such an “anomaly,” the Court said no, stating: “We do not think that

Congress could have intended that the weighty policies underlying discovery privileges could be so easily

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circumvented.” United States v. Weber Aircraft Corp.,

465 U.S. 792, 801-02 (1984).

A Congress whose aim was to further the purposes just discussed would not have limited Exemption 5’s coverage to communications authored by

agency employees. Outside consultants would presumably be just as hesitant as agency employees to

engage in frank discussion of legal and policy matters

if they know that their advice and analysis may be

made public, with the same detrimental effect on the

quality of the agency’s decision-making. And an

agency’s litigation opponents could use FOIA to circumvent civil discovery privileges just as effectively

whether the privileged communications to be disclosed were between the agency and its outside consultants or between agency employees. Reading Exemption 5 to exclude communications with outside

consultants altogether, as Rojas urges us to hold,

would require us to assume that Congress saddled

agencies with a strong disincentive to employ the services of outside experts, even when doing so would be

in the agency’s best interests. We see no evidence to

support that assumption in FOIA’s text or its legislative history.

The implausibility of Rojas’s interpretation of the

phrase “intra-agency memorandums”—as mandating

authorship by agency employees—is illustrated perhaps most starkly in the context of an agency’s hiring

of outside counsel to represent it in litigation. Under

ordinary privilege rules, the agency’s litigation opponent could not, of course, demand disclosure of written communications between the agency and its outside attorney or production of the attorney’s work-

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product. Yet under Rojas’s reading of Exemption 5, all

of those otherwise privileged materials would be subject to public disclosure under FOIA—at the request

of the agency’s litigation opponent or anyone else. It

seems doubtful that Congress intended the term “intra-agency” in Exemption 5 to exclude outside attorneys, because doing so would, for all practical purposes, preclude agencies from relying on the services

of outside counsel in most instances. Indeed, even Rojas appears to acknowledge that outside attorneys

must be deemed “within” an agency for purposes of

Exemption 5, but he offers no principled basis on

which an agency’s outside attorneys could be distinguished from other outside consultants hired to assist

in carrying out the agency’s functions.

Given these considerations, we do not agree that

Rojas’s reading of the term “intra-agency” is the only

textually permissible interpretation of Exemption 5’s

scope. While we are mindful of our obligation to construe FOIA’s exemptions narrowly, we must at the

same time give them “a fair reading,” just as we would

any other statutory provision. Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2366

(2019). In our view, a fair reading of the term “intraagency” is the one acknowledged by the Supreme

Court in Department of Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001). There,

without accepting or rejecting the consultant corollary, the Court noted the then-uniform view of lower

courts that, in certain circumstances, “consultants

may be enough like the agency’s own personnel to justify calling their communications ‘intra-agency.’” Id.

at 12. As Justice Scalia stated in Julian, that reading

of Exemption 5 is not only “textually possible” but also

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“much more in accord with the purpose of the provision.” Julian, 486 U.S. at 18 n.1 (Scalia, J., dissenting). We therefore join the six other circuits that have

recognized some version of the consultant corollary to

Exemption 5.2

As for identifying those consultants who “may be

enough like the agency’s own personnel to justify calling their communications ‘intra-agency,’” the Supreme Court’s decision in Klamath provides helpful

guidance. Although the Court did not endorse the consultant corollary, it distilled general principles

gleaned from lower court decisions that we think define the outer boundaries of Exemption 5’s reach. To

be deemed “within” an agency for purposes of Exemption 5, a consultant must be hired by the agency to

perform work in a capacity similar to that of an employee of the agency, such that “the consultant functions just as an employee would be expected to do.”

Klamath, 532 U.S. at 10-11. That means the consultant must “not represent an interest of its own, or the

interest of any other client, when it advises the

2 See Soucie v. David, 448 F.2d 1067, 1078 n.44 (D.C. Cir. 1971);

Government Land Bank v. General Services Administration, 671

F.2d 663, 665 (1st Cir. 1982); Lead Industries Association, Inc. v.

OSHA, 610 F.2d 70, 83 (2d Cir. 1979); Hanson v. U.S. Agency for

International Development, 372 F.3d 286, 292-93 (4th Cir. 2004);

Wu v. National Endowment for Humanities, 460 F.2d 1030, 1032

(5th Cir. 1972); Stewart v. Department of Interior, 554 F.3d 1236,

1245 (10th Cir. 2009); cf. Brockway v. Department of Air Force,

518 F.2d 1184, 1194 (8th Cir. 1975) (holding that Exemption 5

includes some witness statements provided to the Air Force as

part of an investigation). The only circuit arguably to question

the validity of the consultant corollary thus far is the Sixth. See

Lucaj v. FBI, 852 F.3d 541, 548-49 (6th Cir. 2017).

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agency that hires it.” Id. at 11. Its obligations must be

solely “to truth and its sense of what good judgment

calls for.” Id.

Because the scope of Exemption 5 turns on the

character of the document at issue—it is the memorandum or letter that must be “intra-agency”—these

principles should be applied on a document-by-document basis. The relevant inquiry asks not whether

the “consultant functions just as an employee would

be expected to do” in a general sense, but rather

whether the consultant acted in a capacity functionally equivalent to that of an agency employee in creating the document or documents the agency seeks to

withhold.

Applying these general principles here, we conclude that APTMetrics created the three documents

at issue while performing work in the same capacity

as an employee of the FAA. The FAA’s Office of the

Chief Counsel asked APTMetrics to prepare summaries of its validation work to assist the agency’s lawyers in defending the validity of the 2015 biographical

assessment. In creating each of the three documents,

APTMetrics functioned no differently from agency

employees who, although possessing less expertise,

could have been tasked by the FAA’s lawyers with

preparing the same summaries. See Rojas, 927 F.3d

at 1063 (Christen, J., concurring in part and dissenting in part). APTMetrics represented neither its own

interests nor those of any other client in carrying out

its work, and it did not share the documents with anyone outside the FAA’s Office of the Chief Counsel,

just as agency employees would have been expected to

keep sensitive documents of this sort in-house. With

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respect to preparation of the summaries, then, APTMetrics was operating enough like the FAA’s own employees to justify calling its communications with the

FAA “intra-agency.” See Klamath, 532 U.S. at 12.3

B

Because we conclude that the documents at issue

qualify as intra-agency memorandums, we must next

consider whether they satisfy Exemption 5’s second

requirement: that the documents “would not be available by law to a party … in litigation with the agency.”

5 U.S.C. § 552(b)(5). This phrase has been construed

to incorporate civil discovery privileges including, as

relevant here, the attorney work-product privilege.

See Sears, 421 U.S. at 148-49. After conducting our

own in camera review of the documents at issue, we

agree with the district court that two of the three documents listed in the Vaughn index are protected by

the attorney work-product privilege and thus would

not be subject to discovery in civil litigation with the

FAA. However, a remand is necessary to determine

3 A different result might follow if the documents at issue

had been the validation studies themselves. According to the

FAA, APTMetrics performed the validation work in its capacity

as an “outside expert” hired to provide independent validation of

the 2015 biographical assessment. As APTMetrics’ outsider status was essential to this work, APTMetrics could not have acted

in a capacity equivalent to that of the FAA’s own employees

when it validated the test. Put differently, it is far from clear

that an agency may tout the independent validation provided by

“outside experts” and at the same time claim that those experts

are “within” the agency for purposes of Exemption 5.

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whether the third document is also protected by the

privilege.

A document is privileged as attorney work-product when it was prepared (1) “in anticipation of litigation or for trial,” and (2) “by or for another party or by

or for that other party’s representative.” In re Grand

Jury Subpoena, 357 F.3d 900, 907 (9th Cir. 2004).

As to the first requirement, the FAA’s declarations adequately explained why two of the three documents were prepared in anticipation of litigation. In

April 2014, an unsuccessful applicant for a position as

an air traffic controller filed a complaint against the

FAA on behalf of a class of other unsuccessful applicants. In November 2014, lawyers in the FAA’s Office

of the Chief Counsel asked APTMetrics to prepare

“summaries and explanations” of the work it had done

to validate the revised 2015 version of the biographical assessment. According to the declarations submitted by the FAA, APTMetrics sent its initial response to the Office of the Chief Counsel in December

2014 and followed up with a supplemental response

in January 2015.

As Rojas notes, the April 2014 complaint challenged the FAA’s use of the 2014 version of the biographical assessment, not the 2015 version of the test

that is the subject of the documents at issue. But the

FAA planned to use a revised version of the 2014 test

to perform a similar screening function during the

2015 hiring cycle, so it was reasonable for the agency

to anticipate litigation concerning use of the revised

2015 biographical assessment as well. The documents

that APTMetrics sent to the Office of the Chief

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Counsel in December 2014 and January 2015 were

prepared in anticipation of that litigation.

The FAA’s declarations do not address the one remaining document, which is described in the Vaughn

index as a document prepared by APTMetrics dated

September 2, 2015. The declaration from the FAA’s

lawyer states that the Office of the Chief Counsel received responses to its request for summaries of APTMetrics’ validation work in December 2014 and January 2015. It makes no mention of a third document

received at a later date. Moreover, in camera review

of the document suggests that it may have been

drafted as a response to a request for information

from an outside third party, rather than as an internal memorandum from APTMetrics to the FAA’s lawyers. As a result, on this record the FAA failed to carry

its burden of establishing that this document was prepared in anticipation of litigation.

Rojas objects that, even if APTMetrics’ December

2014 and January 2015 summaries qualify as attorney work-product, the firm did not conduct the underlying validation studies in anticipation of litigation.

But application of the attorney work-product privilege does not turn on whether the records underlying

the summaries were created in anticipation of litigation. What matters is that the summaries themselves

were created in anticipation of litigation, since those

are the documents the FAA seeks to withhold.

Regarding the privilege’s second requirement, the

December 2014 and January 2015 summaries were

prepared for the FAA by APTMetrics. The work-product privilege covers not only documents prepared by a

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party but also documents prepared by others acting

on the party’s behalf. United States v. Nobles, 422

U.S. 225, 238-39 & n.13 (1975); see also Fed. R. Civ.

Proc. 26(b)(3)(A) (listing a party’s “consultant” among

those who may prepare a document subject to workproduct protection). That the summaries were prepared by APTMetrics on the FAA’s behalf, rather

than by the FAA itself, poses no barrier to application

of the work-product privilege.

Because the December 2014 and January 2015

validation summaries are intra-agency memorandums that would be subject to the attorney workproduct privilege in litigation with the FAA, the FAA

properly withheld them under Exemption 5. We vacate the district court’s entry of summary judgment

for the FAA as to the third document, dated September 2, 2015, and remand for further proceedings with

respect to that document.

III4

Rojas raises two arguments concerning the adequacy of the FAA’s search for responsive documents.

We agree with the three-judge panel’s unanimous resolution of both arguments.

First, Rojas contends that the FAA should have

been required to search APTMetrics’ records for documents responsive to his FOIA request, since such a

search would undoubtedly have turned up the data

4 Chief Judge Thomas and Judges Wardlaw, Rawlinson, M.

Smith, Hurwitz, and Collins join in this part of the majority opinion.

23a

underlying APTMetrics’ validation work as well as

the validation studies themselves, rather than just

the summaries of those studies included in the FAA’s

Vaughn index. Like the three-judge panel, we are

sympathetic to Rojas’s argument. See Rojas, 927 F.3d

at 1059. It seems counterintuitive to hold that an outside consultant may be deemed “within” a federal

agency for purposes of invoking Exemption 5, but that

documents created by the consultant on the agency’s

behalf may be outside the scope of the search FOIA

requires. Nonetheless, existing Supreme Court precedent forecloses Rojas’s contention.

FOIA authorizes a court to compel disclosure of

“agency records.” 5 U.S.C. § 552(a)(4)(B). The Supreme Court has held that agency records must have

been created or obtained by the agency and must be

in the agency’s control at the time the FOIA request

is made. Department of Justice v. Tax Analysts, 492

U.S. 136, 144-45 (1989). Documents that are not in an

agency’s possession do not constitute “agency records”

even if the agency could have obtained them by asking

a third party to produce them. Id. at 144. Given this

precedent, the FAA properly limited the scope of its

search to records in the agency’s possession; it had no

obligation to search records in APTMetrics’ possession.

Second, Rojas argues that the declarations submitted by the FAA fail to show that it “conducted a

search reasonably calculated to uncover all relevant

documents,” as our cases require. Zemansky v. EPA,

767 F.2d 569, 571 (9th Cir. 1985). To satisfy this requirement, the FAA’s declarations had to be “nonconclusory” and “relatively detailed in their description

24a

of the files searched and the search procedures” followed. Id. at 573. But here, the FAA submitted just

one declaration describing the scope of the search, and

it stated only that the search conducted by the Office

of the Chief Counsel “was reasonably calculated to obtain responsive records because the attorneys who

provided legal advice related to the revisions to the

[air traffic controller] hiring process were asked to review their records.”

The FAA’s declaration falls short of what our

cases require because it offers no details about how

the search was conducted. For example, it does not

describe, even in general terms, the number of attorneys involved, the search methods they used, the body

of records they examined, or the total time they spent

on the search. Cf. Lane v. Department of Interior, 523

F.3d 1128, 1139 (9th Cir. 2008); Citizens Commission

on Human Rights v. FDA, 45 F.3d 1325, 1328 (9th Cir.

1995). Without details such as these, we are in no position to conclude that the agency’s search was reasonably calculated to locate all responsive records. See

Steinberg v. Department of Justice, 23 F.3d 548,

551-52 (D.C. Cir. 1994) (declaration found inadequate

because it “fail[ed] to describe in any detail what records were searched, by whom, and through what process”).

*

*

*

We join six of our sister circuits in adopting the

consultant corollary to Exemption 5, and we hold that

the FAA properly withheld two of the three documents at issue here under that exemption. However,

the FAA did not establish that the remaining

25a

document is protected by the attorney work-product

privilege, and the agency failed to show that it conducted a search reasonably calculated to locate all

documents responsive to Rojas’s FOIA request. We

vacate the district court’s entry of summary judgment

in the FAA’s favor and remand for further proceedings consistent with this opinion.

Rojas’s motion for judicial notice (Dkt. No. 7) is

DENIED.

AFFIRMED in part, VACATED in part, and

REMANDED for further proceedings.

The parties shall bear their own costs.

COLLINS, Circuit Judge, concurring:

I concur in the majority opinion, which adopts the

reading of Exemption 5 endorsed by Justice Scalia

(joined by two other Justices) in his dissenting opinion in United States Department of Justice v. Julian,

486 U.S. 1 (1988). Under that reading, Exemption 5’s

reference to “intra-agency memorandums” extends to

“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,” such

as a “consultant to the agency.” Id. at 18 n.1 (Scalia,

J., dissenting).1 I write separately to respond to the

1 In Julian, the Supreme Court held that, even assuming

that the documents in question were “‘inter-agency’ records for

purposes of Exemption 5,” see 486 U.S. at 11 n.9, they were not

exempt from disclosure because, at least as to the requesters in

that case, the additional requirements of Exemption 5 were not

met, see id. at 11-14. Justice Scalia dissented from that latter

26a

dissents’ erroneous contentions that Justice Scalia’s

reading of Exemption 5 is “atextual,” see Wardlaw

Dissent at 33; that it “rewrites” Exemption 5, see id.;

that it uses “legislative purpose to override statutory

text,” see Bumatay Dissent at 58; and that, ultimately, he (and we) “simply made it up,” id. at 61.

I

The relevant text of Exemption 5 states that

FOIA’s disclosure requirements do not apply to “interagency or intra-agency memorandums or letters that

would not be available by law to a party other than an

agency in litigation with the agency.” 5 U.S.C.

§ 552(b)(5). The dissents assume that, by using the

term “intra-agency,” the statute is “crystal clear” in

referring only to memoranda prepared by “‘employees

of a single agency,’” see Wardlaw Dissent at 35, 36

(emphasis added) (citation omitted), and “leave[s] no

room for documents created by those outside of an

agency’s employment,” see Bumatay Dissent at 53

(emphasis added). But as Justice Scalia recognized, to

the extent that this employment-based reading might

seem to be the “most natural meaning of the phrase

‘intra-agency memorandum,’” that is true only if one

examines that phrase “[a]part from its present context.” Julian, 486 U.S. at 18 n.1 (Scalia, J., dissenting)

(emphasis added). Here, there are two features of the

holding, and as a result, his dissent had to address the issue of

whether Exemption 5 was inapplicable on the alternative

ground that the documents were “not ‘inter-agency or intraagency memorandums’ within the meaning of Exemption 5.” Id.

at 18 n.1 (Scalia, J., dissenting); see also id. at 11 n.9 (majority

opinion) (majority did “not find it necessary” to reach this issue).

27a

statutory text that, considered in context, point away

from the dissents’ narrow, employment-based reading

of Exemption 5.

First, the dissents overlook the fact that the actual words of the statute require only that the “memorandum[]” be “intra-agency,” not necessarily that the

authors and recipients be formal employees of that

agency. 5 U.S.C. § 552(b)(5) (emphasis added). As the

Supreme Court recognized in Department of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S.

1 (2001), this feature of the statutory language plainly

allows for a reading under which “consultants may be

enough like the agency’s own personnel to justify calling their communications ‘intra-agency.’” Id. at 12

(emphasis added).2 Thus, while the Court in Klamath

did not decide whether Justice Scalia’s reading of Exemption 5 was correct, see 532 U.S. at 12 (specifically

reserving the question), the Court recognized that, at

the very least, Justice Scalia was right in contending

that his view rested on a “permissible … reading of

the statute,” Julian, 486 U.S. at 18 n.1 (Scalia, J. dissenting) (emphasis added). As the Klamath Court explained, the reason why consultants might be enough

like

employees

“to

justify

calling

their

2 The Supreme Court’s apt phrasing of this alternative per-

missible reading refutes the dissents’ strawman arguments that

this construction rests either on a “geographical” or “location”

condition, see Bumatay Dissent at 55 n.5, or on the view that any

document in the agency’s possession (from any source) is, without more, an “intra-agency” memorandum, see Wardlaw Dissent

at 44-44. Nothing in Justice Scalia’s dissent in Julian, or in the

Supreme Court’s description of his view in Klamath, adopts the

dissents’ caricatures.

28a

communications ‘intra-agency’” is that “the consultant does not represent an interest of its own, or the

interest of any other client, when it advises the

agency that hires it. Its only obligations are to truth

and its sense of what good judgment calls for, and in

those respects the consultant functions just as an employee would be expected to do.” 532 U.S. at 11-12 (emphasis added).3 Accordingly, the dissents’ contention

that the words of the statute “clearly” and “precisely”

require authorship by a formal employee—as opposed

to someone acting in some other “governmentally conferred capacity,” Julian, 486 U.S. at 18 n.1 (Scalia, J.,

dissenting)—is simply incorrect. See Wardlaw Dissent at 35-35; Bumatay Dissent at 35-36.4

Second, the dissents overlook the remainder of

the statutory language in Exemption 5, which further

elucidates the types of documents protected by that

provision. The intra-agency memorandums covered

by Exemption 5 are those “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) (emphasis

added). As the text suggests, this language “simply

3 By contrast, Klamath held that the same was not true with

respect to a self-interested party who communicates with an

agency to further its own, independent interests, and such a

party’s communications with the agency thus could not be said

to be “intra-agency.” 532 U.S. at 12-13.

4 For the same reason, Judge Bumatay is wrong in suggest-

ing that it is “not clear how else Congress could have expressed

its rejection” of Justice Scalia’s view. See Bumatay Dissent at 60.

Had Congress wanted to limit the excluded memoranda to only

those authored by agency “employees,” it could certainly have

added language specifically stating that.

29a

incorporates civil discovery privileges.” United States

v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984); see

also 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[.]”). Consequently, in

determining whether a communication is within the

agency for purposes of Exemption 5, it makes sense to

consider whether the communication to the agency is

from a person whose “governmentally conferred capacity,” Julian, 486 U.S. at 18 n.1 (Scalia, J., dissenting), is one that can bring it within the agency’s litigation privileges. On that score, it is highly relevant that

“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.” Rojas v. FAA, 927 F.3d 1046, 1062 (9th Cir.

2019) (Christen, J., concurring in part and dissenting

in part) (emphasis added) (collecting cases).5

The dissents nonetheless argue that Exemption 5

should be restricted to employee-authored memoranda because, unlike Exemptions 4 and 8, the text of

Exemption 5 does not expressly refer to documents

from non-employees. See Wardlaw Dissent at 35-36;

Bumatay Dissent at 58 n.6. But it is of no relevance

that the very different categories of documents

5 Contrary to what the dissents suggest, this does not mean

that the term “‘intra-agency’ does no work at all.” See Bumatay

Dissent at 55 n.5; see also Wardlaw Dissent at 44. It simply

means that, in choosing between two permissible readings of “intra-agency,” one should not lose sight of the entirety of the statutory language and what it reveals about the statute’s purpose.

30a

covered by Exemption 4, 5 U.S.C. § 552(b)(4) (“trade

secrets and commercial or financial information obtained from a person and privileged or confidential”),

and Exemption 8, id. § 552(b)(8) (matters “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”), use language that includes

various types of documents created by persons that

everyone would agree are outsiders. Exemption 5 does

not follow the same approach and therefore would not

be expected to use similar language. It instead applies

to “intra-agency memorandums,” and the question

here is what communications by whom and for what

purpose count as such. Put another way, the fact that

Exemption 5 does not broadly sweep in certain categories of outsider-created documents does not somehow mean that only employee-authored documents

count as “intra-agency” documents. Because the

wording and aim of the provisions are so different,

this is not a situation in which Congress otherwise

used very similar language in multiple different provisions, but then chose to omit a particular term in

one of those multiple instances. Cf. Russello v. United

States, 464 U.S. 16, 23 (1983). Here, the wording of

the three exemptions is so completely dissimilar that

the comparative inference the dissents try to draw is

unwarranted.

The dissents are thus wrong in contending that

Exemption 5’s reference to “intra-agency memorandums” excludes, as a textual matter, the broader

reading of Exemption 5 adopted by Justice Scalia in

Julian.

31a

II

Moreover, as Justice Scalia also recognized, his

refusal to read Exemption 5 as limited to employeeauthored documents is not only a “permissible” reading but a “desirable” one. Julian, 486 U.S. at 18 n.1

(Scalia, J., dissenting). Limiting the provision to only

those documents authored by formal employees “excludes many situations where Exemption 5’s purpose

of protecting the Government’s deliberative process is

plainly applicable.” Id. It is therefore “textually possible and much more 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.” Id. And in the case

before us, as in Julian, “[h]ere we have … memorand[a] that fit[] readily within this definition.” Id.

The dissents contend that this consideration of

the “purpose” of Exemption 5 disregards “the textualist revolution,” see Wardlaw Dissent at 38, and

amounts to an “‘escape route from the prison of the

text,’” see Bumatay Dissent at 54 (quoting Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 19 (2012) (“Reading Law”)).

These charges are unfounded, as is the contention

that Justice Scalia in Julian betrayed the very “principles that [he] spent a lifetime advocating,” see id. at

12.

The “fair reading” method of textualism that Justice Scalia endorsed “requires an ability to comprehend the purpose of the text, which is a vital part of

32a

its context.” Reading Law, supra, at 33. “But the purpose is to be gathered only from the text itself, consistently with the other aspects of its context.” Id.

(emphasis added). Here, of course, the purpose of Exemption 5 to protect the Government’s litigation privileges is express on the face of the statute itself, which

explicitly describes the exemption in terms of when a

document “would not be available by law to a party …

in litigation with the agency.” 5 U.S.C. § 552(b)(5). It

is no lapse into purposivism to insist that, in choosing

among the permissible readings that the text will

bear, a “textually permissible interpretation that furthers rather than obstructs the [statute’s] purpose

should be favored.” Reading Law, supra, at 63. The

dissents’ employment-based reading of “intra-agency

memorandums” would plainly obstruct Exemption 5’s

purpose to protect the Government’s litigation privileges, and because there is a permissible reading of

the text that avoids this outcome, it is to be preferred.6

6 Judge Bumatay is also wide of the mark in chastising the

majority for supposedly “rel[ying] on legislative history to determine Congress’s purpose in enacting FOIA exemptions.” See

Bumatay Dissent at 59. The referenced portion of the majority

opinion quotes a Supreme Court case identifying the “purpose”

of Exemption 5 based on the Supreme Court’s reliance on legislative history. See Maj. Opin. at 13-14 (quoting Sears, 421 U.S.

at 150). I share Justice Scalia’s criticism of the use of legislative

history, but as a judge of an “inferior Court[]” to the “one supreme Court,” see U.S. CONST. art. III, § 1, I cannot fault the

majority for faithfully following controlling Supreme Court precedent telling us what the purpose of Exemption 5 is, even if that

precedent relies on legislative history. And, as I have explained,

the text of Exemption 5 itself amply confirms the Supreme

Court’s point in Sears that Exemption 5’s purpose is to protect

33a

Neither dissent seriously disputes that the employee-only reading of Exemption 5 would impede its

express purpose by, for example, requiring disclosure

of attorney-client communications with any outside

counsel. Judge Bumatay instead sidesteps the problem by noting that attorney-client materials are not

at issue on the particular facts of this case and that

the FAA presumably does not rely on outside counsel.

See Bumatay Dissent at 62-63. But FOIA has a wide

reach, and there are entities (such as, for example, the

FDIC) that count as “agencies” for purposes of FOIA

and that use outside counsel frequently enough to

have written guidelines on the subject. See FDIC, “Information for Prospective Outside Counsel,”

<https://www.fdic.gov/buying/legal/ocbrochure/information-for-prospective- outside-counsel.pdf>.7

Judge Wardlaw, by contrast, does not avoid the

implications of the employee-only reading of Exemption 5. Instead, to the extent that this reading would

allow FOIA to vitiate “even attorney-client materials,” Judge Wardlaw views that as simply the price to

pay to “ensure[] that the workings of the Executive

confidential communications protected by “civil discovery privileges.” See Maj. Opin. at 13.

7 Judge Bumatay suggests that the implications of his posi-

tion may not be as ominous as they seem for such agencies, because he speculates that maybe all of their outside counsel are

actually formally designated as “special Government employees.” See Bumatay Dissent at 63 n.9. However, he cites nothing

to support this speculation, which seems at odds with the FDIC’s

outside-counsel handbook as well as with the applicable FDIC

regulations, which designate them as “contractors.” See 12

C.F.R. pt. 366.

34a

Branch are transparent to the American people.” See

Wardlaw Dissent at 44-46. Indeed, Judge Wardlaw

erroneously disregards the purpose of Exemption 5 altogether, treating it as always subordinate to FOIA’s

overarching aim of disclosure—so much so that, under her view, we must adopt any pro-disclosure reading of the text, apparently without regard to any other

textual canons. See id. at 41. This flawed analysis

overlooks the fact that FOIA’s “exemptions are as

much a part of FOIA’s purposes and policies as the

statute’s disclosure requirement.” Food Mktg. Inst. v.

Argus Leader Media, 139 S. Ct. 2356, 2366 (2019)

(simplified); see also Reading Law, supra, at 168

(“[L]imitations on a statute’s reach are as much a part

of the statutory purpose as specifications of what is to

be done.”). And here, of course, it is the text of an exemption that is at issue.

III

Because Justice Scalia’s reading of Exemption 5

is both “textually possible and much more in accord

with the purpose of the provision,” Julian, 486 U.S. at

18 n.1 (Scalia, J., dissenting), I agree with the majority’s endorsement of that reading. And the dissents

are thus wrong in insisting that the statutory text requires this court to create a 6-1 circuit split by jettisoning 50 years of settled case law that Congress has

never seen fit to reject.8 Cf. Monessen Sw. Ry. Co. v.

8 Judge Wardlaw wrongly contends that the Sixth Circuit in

Lucaj v. FBI, 852 F.3d 541 (6th Cir. 2017), “cast serious doubt on

whether the consultant corollary can be found in Exemption 5’s

text.” See Wardlaw Dissent at 39. The target of the Sixth Circuit’s criticism was the distinct (and much broader) “commoninterest doctrine,” on which the FBI had relied in that case. 852

35a

Morgan, 486 U.S. 330, 338 (1988) (“Congress’ failure

to disturb a consistent judicial interpretation of a

statute may provide some indication that Congress at

least acquiesces in, and apparently affirms, that interpretation.” (simplified)).

WARDLAW, Circuit Judge, with whom THOMAS,

Chief Judge, and HURWITZ, Circuit Judge, join, concurring in part and dissenting in part:

Less than two years ago, the Supreme Court

reemphasized that federal courts must interpret and

apply FOIA in accordance with that statute’s plain

text and structure. See Food Mktg. Inst. v. Argus

Leader Media, 139 S. Ct. 2356, 2362-63 (2019). That

lesson rings particularly true when, as here, FOIA’s

plain text aligns with FOIA’s presumption of government transparency. See Milner v. Dep’t of Navy, 562

U.S. 562, 571 (2011). But today, the majority ignores

these principles, embraces an atextual “consultant

corollary” doctrine, and, in doing so, rewrites FOIA

F.3d at 547-48. In rejecting the FBI’s contention, the Sixth Circuit reasoned that “when the Department of the Interior made

the same argument in Klamath, the Supreme Court rejected it.”

Id. at 548. Given that the Supreme Court in Klamath expressly

declined to reject the so-called “consultant corollary,” the “same

argument” that was rejected by both the Sixth Circuit and the

Supreme Court cannot have been that doctrine. Rather, as the

Sixth Circuit explained, it and the Supreme Court rejected the

view “‘that “intra-agency” is a purely conclusory term, just a label to be placed on any document the Government would find it

valuable to keep confidential’”—which is a fair description of the

common-interest doctrine. Id. (quoting Klamath, 532 U.S. at 12).

As a result, with today’s en banc decision, there is now no circuit

split on the “consultant corollary.”

36a

Exemption 5. For these reasons, I respectfully dissent.1

I.

FOIA grants the public a qualified statutory right

of access to federal agency “records.” See 5 U.S.C.

§ 552(a)(3)(A), (b). Thus, when a member of the public

“requests” records from an agency, the agency must

disclose those records “unless they fall within one of

nine exemptions.” Milner, 562 U.S. at 565.

Exemption 5, at issue here, shields from disclosure “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). By its plain terms then, this exemption applies only if the “communication” being

sought is “inter-agency or intra-agency.” Dep’t of Interior v. Klamath Waters Users Protective Ass’n, 532

U.S. 1, 9 (2001). The majority rightly acknowledges

that the documents sought here are not “interagency” because APTMetrics—the outside consulting

firm that prepared these documents—is “not a federal

agency in its own right.” Maj. Op. at 12. Thus, this

case hangs on whether the documents APTMetrics

prepared and transmitted to the FAA count as “intraagency” memorandums or letters.”

In answering that question, the “proper starting

point lies in a careful examination of the ordinary

meaning and structure of the law itself.” Argus

1 Because I agree with the majority that the FAA’s search

for records was inadequate, I join part III of the majority opinion.

37a

Leader, 139 S. Ct. at 2364. We therefore turn to

FOIA’s text. FOIA itself defines the term “agency.” 5

U.S.C. §§ 551(1), 552(f). “With exceptions not relevant

here,” that word “means ‘each authority of the Government of the United States,’ and ‘includes any executive department, military department, Government

corporation, Government controlled corporation, or

other establishment in the executive branch of the

Government …, or any independent regulatory

agency.’” Klamath, 532 U.S. at 9 (quoting 5 U.S.C.

§§ 551(1), 552(f)). Nothing in this definition provides

a textual hook for thinking of outside contractors as

part of a federal agency.

As for “intra,” FOIA nowhere defines that term.

“So, as usual” and as with other “undefined terms in

FOIA[,]” we look to this term’s “ordinary, contemporary, common meaning [] when Congress enacted

FOIA in 1966.” Argus Leader, 139 S. Ct. at 2362 (internal quotation marks and citations omitted). Much

as it does now, the term “intra” then meant “in” or

“within,” Black’s Law Dictionary 957 (Rev. 4th Ed.

1968); Webster’s Seventh New Collegiate Dictionary

444 (1961), or perhaps “in the interior,” Webster’s Second New Int’l Dictionary of the Eng. Language 1302

(1959). Coupled with FOIA’s definition of “agency,”

the term “intra-agency” clearly signals the idea of being “in” or “within” a federal agency. The question

then becomes what Congress meant when it joined

that understanding of “intra-agency” to the words

“memorandums or letters.”

In this regard, the Supreme Court has acknowledged that “the most natural meaning of the phrase

‘intra-agency memorandum’ is a memorandum that is

38a

addressed both to and from employees of a single

agency.” Klamath, 532 U.S. at 9 (internal quotation

marks and citation omitted). In other words, intraagency memorandums and letters are circulated

within—and only within—an agency. This makes

good sense, for “[n]either the terms of [Exemption 5]

nor the statutory definitions say anything about communications with outsiders.” Id.; see also John C.

Brinkerhoff Jr., FOIA’s Common Law, 36 Yale J. on

Reg. 575, 583 (2019) (“It is doubtful that any reasonable reading of ‘inter-agency or intra-agency’ could

encompass third parties.”).

Exemption 5’s silence on communications and

documents from outsiders is especially notable because other FOIA exemptions explicitly include such

communications and documents. Exemptions 4 and 8

expressly encompass information generated outside

of a federal agency. See 5 U.S.C. § 552(b)(4) (permitting the withholding of “trade secrets and commercial

or financial information obtained from a person and

privileged or confidential” (emphasis added)); id.

§ 552(b)(8) (shielding from disclosure 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” (emphasis added)).

Congress thus knew how to specify that FOIA exemptions cover documents from outside third parties, and

it did so in these other exemptions. See Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383, 392 (2015). That

Exemptions 4 and 8 explicitly speak to this issue—but

Exemption 5 does not—makes clear that Exemption 5

applies only to records that originate and remain inside the federal government.

39a

What’s more, reading “intra-agency memorandums or letters” to cover the exchange of documents

within a federal agency runs parallel to the judicial

interpretation of “inter-agency … memorandums or

letters.” With the word “inter-agency,” “Congress

plainly intended to permit one agency possessing decisional authority to obtain written recommendations

and advice from a separate agency not possessing

such decisional authority without requiring that the

advice be any more disclosable than similar advice received from within the agency.” Renegotiation Bd. v.

Grumman Aircraft Eng’g Corp., 421 U.S. 168, 188

(1975). Congress thus permitted the withholding of

memorandums or letters exchanged “between” agencies, just as its use of the word “intra-agency” allows

for the withholding of memorandums or letters exchanged “within” agencies.

In short, Exemption 5’s text is crystal clear: documents or communications exchanged with outside

consultants do not fall within that exemption. For

“outside consultants” are, by definition, not “within” a

federal agency. They are independent contractors,

hired to assist an agency with a finite task that the

agency has decided to outsource. Indeed, APTMetrics

and its employees may have worked alongside the

FAA’s employees in this case, but it and its employees

are not an arm of the Executive Branch. Our judicial

inquiry should thus be at an end. Argus Leader, 139

S. Ct. at 2364.

II.

“So where did the [consultant corollary] come

from?” Id. (emphasis in original). The answer is a

40a

piece of untethered dicta (Footnote 44 to be exact) in

a D.C. Circuit case from the early 1970’s. See Soucie

v. David, 448 F.2d 1067, 1078 n.44 (D.C. Cir. 1971).

Footnote 44 spoke into existence the consultant corollary without examining either Exemption 5’s text or

FOIA’s overarching structure.2 The Soucie court instead sought to discern Congress’s purpose in enacting Exemption 5, and then considered what other situations not covered by Exemption 5’s text could benefit from a similar rationale. Yet, as we all know by

now, such an “approach is a relic from a bygone era of

statutory construction.” Argus Leader, 139 S. Ct. at

2364 (internal quotation marks and citation omitted).

Still, “judicial inertia” proved a powerful thing.

Rojas v. Fed. Aviation Admin., 927 F.3d 1046, 1057

(9th Cir. 2019), reh’g en banc granted. What Soucie’s

Footnote 44 set in motion, the Fifth Circuit continued

in Wu v. National Endowment for Humanities, 460

F.2d 1030 (5th Cir. 1972). Again, that court did not

bother to confront Exemption 5’s text or FOIA’s structure. Id. at 1032. It simply quoted Soucie and moved

along. Id. The First and Second Circuits soon fell in

line, relying on Soucie, Wu, and later Fifth Circuit

2 Footnote 44 states: “The rationale of the exemption for in-

ternal 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 intraagency memorandum of the agency which solicited it.” Soucie,

448 F.2d at 1078 n.44.

41a

cases that cited Wu rather than conducting any sort

of textual or structural analysis for themselves. See

Gov’t Land Bank v. Gen. Servs. Admin., 671 F.2d 663,

665 (1st Cir. 1982); Lead Indus. Ass’n, Inc. v. OSHA,

610 F. 2d 70, 83 (2d Cir. 1979). Meanwhile, the D.C.

Circuit paid lip service to Exemption 5’s text in Ryan

v. Department of Justice, 617 F.2d 781 (D.C. Cir.

1980), but interpreted that text “in light of [Exemption 5’s] purpose,” id. at 789, which it divined from

legislative history, and the judicial “common sense”

espoused in Wu and Soucie, id. at 790 & n.30; see also

Brinkerhoff, supra, at 614 (“[O]nce a court made an

initial interpretation, others could simply cite that decision rather than re-explain the tensions between

FOIA’s text and diverging doctrine.”).

The Supreme Court watched these developments

from a distance. In 1988, in the early days of the textualist revolution, three dissenting justices suggested

in a footnote without much analysis that the consultant corollary doctrine, though not the “most natural

meaning” of Exemption 5, was “a permissible and desirable reading of the statute.” U.S. Dep’t of Just. v.

Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J., dissenting). Those justices did not, however, explain why this

meaning was “textually possible,” what “the purpose

of” Exemption 5 was, or why that purpose should

trump the exemption’s plain text. Id.

Thirteen years later in Klamath, a unanimous

Court brought this debate into somewhat sharper focus. On the one hand, it acknowledged that “neither

the terms of [Exemption 5] nor the statutory definitions say anything about communications with outsiders.” Klamath, 532 U.S. at 9. It further affirmed

42a

that the words “inter-agency or intra-agency” in Exemption 5 are not “purely conclusory term[s]” and

that there exists no “textual justification for draining

the [inter-agency or intra-agency requirement] of independent vitality.” Id. at 12. On the other hand, the

Court quoted the footnote in Justice Scalia’s Julian

dissent to highlight the previously advanced argument in favor of the consultant corollary doctrine. See

id. at 9-10. But the Court had no occasion to settle this

controversy in Klamath, see id. at 12, and resolved

that case on other grounds, see id. at 12-15.

The debate surrounding the consultant corollary

doctrine and its variants has remained unsettled in

the wake of Klamath. One court of appeals has fallen

in line with the Soucie consensus, though based on a

clear misreading of Klamath. See Stewart v. U.S.

Dep’t of Interior, 554 F.3d 1236, 1244 (10th Cir. 2009)

(stating incorrectly that Klamath had definitively

“recogniz[ed] that Exemption 5 extends to government agency communications with paid consultants”). Another applied the doctrine without analyzing Klamath at all, Hanson v. U.S. Agency for Int’l

Dev., 372 F.3d 286, 291-94 (4th Cir. 2004), and, over

a dissent, has since extended Exemption 5 even further, far beyond the bounds of the consultant corollary, Hunton & Williams v. U.S. Dep’t of Just., 590

F.3d 272, 279-80 (4th Cir. 2010). Only the Sixth Circuit has bucked the Soucie trend and, at the least, cast

serious doubt on whether the consultant corollary can

be found in Exemption 5’s text. See Lucaj v. Fed. Bureau of Invest., 852 F.3d 541, 548-49 (6th Cir. 2017)

(refusing to read Exemption 5’s plain text to embrace

the common interest doctrine and implying that the

consultant corollary suffers from similar defects).

43a

Meanwhile, even within circuits that have embraced

the consultant corollary, there remain clear misgivings. See, e.g., Nat’l Inst. of Military Just. v. Dep’t of

Def., No. 06-5242, 2008 WL 1990366, at *1 (D.C. Cir.

April 30, 2008) (Tatel, J., concurring in the denial of

rehearing en banc) (“I continue to believe that the documents at issue here fall outside the protection of Exemption 5 of the Freedom of Information Act because

they cannot plausibly be described as ‘intraagency’ …”).

If you expected a long and storied history of careful analysis and reasoning to lie behind the consultant

corollary, you probably feel disappointed. Readers familiar with FOIA might even feel a sense of déjà vu in

all this. As in Milner and Argus Leader, a decades-old

D.C. Circuit decision that contained no meaningful

analysis of FOIA’s text gave birth to an atextual doctrine. And as in those cases, other circuits followed

the D.C. Circuit’s lead without meaningful analysis of

the text or structure of Exemption 5. We can only

speculate as to where this will end.

III.

To its credit, the majority opinion acknowledges

that adopting the consultant corollary is not the most

natural reading of Exemption 5. Maj. Op. at 12. Its

analysis laudably does more than blindly cite to

Soucie, Wu, or their progeny. However, it can only

adopt the consultant corollary by distorting Exemption 5’s context and legislative purpose. Maj. Op. at

13. None of this analysis was necessary given Exemption 5’s plain text, and perhaps worse, none of it holds

up to careful scrutiny.

44a

On every level, FOIA’s statutory context cuts

against the consultant corollary. At the highest level,

“disclosure, not secrecy, is the dominant objective of”

FOIA, Klamath, 532 U.S. at 8, and “Congress undoubtedly sought to expand public rights of access to

Government information” through this Act, Forsham

v. Harris, 445 U.S. 169, 178 (1980). The statute thus

contains multiple different mechanisms to facilitate

government

transparency.

See

5

U.S.C.

§ 552(a)(1)-(3), (5). “This pro-disclosure framework is

deliberate” and embodies “the power of frustration reflected in congressional distrust for agency withholding[,]” Brinkerhoff, supra, at 577 (internal quotation

marks and citation omitted), which stemmed from the

litany of government abuses before FOIA and the Watergate scandal, see 1 O’Reilly, Fed. Info. Disclosure

§§ 2:2, 3:8 (2018).

Zooming in to focus on the context of FOIA’s exemptions is similarly unhelpful to the majority’s

cause. These nine limited exemptions are “explicitly

made exclusive and must be narrowly construed.”

Milner, 562 U.S. at 564 (internal quotation marks and

citations omitted); see also 5 U.S.C. § 552(d). Therefore, even if there are two equally plausible readings

of a given FOIA exemption, we must favor the one

that promotes government transparency—not secrecy. See Dep’t of Air Force v. Rose, 425 U.S. 352, 366

(1976) (“FOIA requires us to choose that interpretation most favoring disclosure.”); John Doe Agency v.

John Doe Corp., 493 U.S. 146, 164 (1989) (Scalia, J.,

dissenting) (“[O]ur doctrine of ‘narrowly construing’

FOIA exemptions requires that ambiguity to be resolved in favor of disclosure.”).

45a

If anything, then, statutory context dooms the

majority’s reading of Exemption 5. Although the plain

text of the word “intra-agency” should alone resolve

this case, the majority (wrongly) views this word as

having two equally plausible interpretations. Maj.

Op. at 13. One interpretation reads Exemption 5 narrowly, rejects the consultant corollary, and thus favors disclosure; the other does the exact opposite.

That dichotomy should make our job easy. Because

the tie goes to disclosure, so to speak, we should side

with the narrow interpretation of “intra-agency” and

refuse to adopt the consultant corollary. See Rose, 425

U.S. at 366.

Instead, the majority’s “tiebreaker” is a myopic

reading of the purposes behind Exemption 5. To be

sure, that exemption reflects a justifiable policy concern with protecting an agency’s internal deliberations and preventing the disclosure of certain privileged documents. See Klamath, 532 U.S. at 8-9;

United States v. Weber Aircraft Corp., 465 U.S. 792,

801 (1984). But “the point” of Exemption 5 “is not to

protect Government secrecy pure and simple,” and

thus “the first condition of Exemption 5 is no less important than the second; the communication must be

‘inter-agency or intra-agency.’” Klamath, 532 U.S. at

9; Brinkerhoff, supra, at 584 (explaining that Congress did not transfer the privileges existing prior to

FOIA’s enactment to Exemption 5 “unscathed”). In

other words, Exemption 5 protects from disclosure

only certain privileged agency documents—i.e., those

that are inter- or intra-agency.

In this respect, it is notable that the cases from

which the majority surmises the purpose of

46a

Exemption 5 all predate Klamath. Maj. Op. at 13-14.

Before Klamath, the Supreme Court’s Exemption 5

cases had addressed only half of the Exemption 5 inquiry. See 532 U.S. at 8 (“Our prior cases on Exemption 5 have addressed the second condition, incorporating civil discovery privileges.”). Klamath thus

marked the first time that the Supreme Court addressed the full purpose of Exemption 5, and the

Court there specifically warned against draining Exemption 5’s “intra-agency or inter-agency” requirement of “independent vitality.” Id. at 12.

That Congress intended Exemption 5 to protect

less than the full universe of privileged government

documents is also far from surprising. Early drafts of

FOIA immunized even fewer of these documents from

disclosure. They shielded only “agency internal memoranda used in disposing of adjudicatory or rulemaking matters[,]” and refused to protect even “routine

internal agency correspondence.” 1 O’Reilly, Fed. Info.

Disclosure § 2:3. Of course, the Executive Branch

balked at this language, and a compromise was ultimately reached. See id. § 15:2. Together, the political

branches drew a new line at “intra-agency or interagency 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); see

also 1 O’Reilly, Fed. Info. Disclosure § 15:2. The release of some privileged documents through FOIA is

thus by no means the aberration the majority suggests, but a long-planned feature of FOIA. See Klamath, 532 U.S. at 16 (“Congress had to realize that

not every secret under the old law would be secret under the new.”).

47a

Judge Collins’s concurrence makes a similar misstep, though he frames this argument as a contextual

reading of the word “intra-agency” rather than one

based on legislative purpose. Collins Concurrence at

26-27. However, as already explained, that Exemption 5’s text envisions protecting some privileged documents from disclosure by no means signals that Congress intended to withhold from scrutiny all such documents. Cf. Klamath, 532 U.S. at 11-12 (“From the

recognition of this interest in frank communication,

which the deliberative process privilege might protect, the Department would have us infer a sufficient

justification for applying Exemption 5 to communications with the Tribes, … But the Department’s argument skips a necessary step, for it ignores the first

condition of Exemption 5, that the communication be

‘intra-agency or inter-agency.’”); id. at 16 (“FOIA’s

mandate of broad disclosure … was obviously expected and intended to affect Government operations.”).

Finally, as already explained, Exemption 5’s use

of the word “intra-agency” does not protect just any

memorandum or letter within an agency, regardless

of whether its authors and recipients were agency employees. Collins Concurrence at 24. But two additional points are worth emphasizing. First, such a

reading would render the term “intra-agency …

purely conclusory” and without “independent vitality,” id. at 32, for every document potentially subject

to a FOIA request is “within” an agency, see U.S. Dep’t

of Just. v. Tax Analysts, 492 U.S. 136, 142, 144-46

(1989). Second, that reading would also cause courts

to read Exemption 5’s parallel terms “intra-agency”

and “inter-agency” in asymmetric ways. Intra-agency

48a

memorandums or letters would merely need to be

physically (or digitally) within an agency, while interagency memorandums or letters would need to have

been exchanged between agencies. Reading these

terms, located in the same sentence, to diverge in such

a manner runs counter to a faithful interpretation of

FOIA’s text. See United States v. Williams, 553 U.S.

285, 294 (2008) (“[A] word is given more precise content by the neighboring words with which it is associated.”).

IV.

All that remains at this point is a consequentialist

argument based on a fear of the quantity and types of

government documents that may enter the public domain if we take Congress at its word in Exemption 5.

As judges, we are former lawyers, and it is only natural that our instincts lead us away from the possibility

that Congress authorized the disclosure of sensitive

documents—for instance, attorney work-product or

even attorney-client materials. See Maj. Op. at 15.

And to be sure, Exemption 5, like all FOIA exemptions, plays an important role in FOIA’s statutory

scheme. See Argus Leader, 139 S. Ct. at 2366; Collins

Concurrence at 31. But, we must respect the statutory

scheme that Congress created and read Exemption 5

as Congress wrote it; we cannot “tak[e] a red pen to

the statute” and “cut[] out some words and past[e] in

others.” Milner, 562 U.S. at 573 (internal quotation

marks and citation omitted); see also Argus Leader,

139 S. Ct. at 2366 (“[W]e cannot properly expand Exemption 4 beyond what its terms permit[;] we cannot

arbitrarily constrict it either.”). Indeed, “[b]y suggesting that our interpretation of Acts of Congress

49a

adopted [five decades] ago should be inflected based

on the costs of enforcing them today, the [majority]

tips its hand.” McGirt v. Oklahoma, 140 S. Ct. 2452,

2481 (2020).

Besides, “dire warnings are just that, and not a

license for us to disregard the law.” Id. If Congress

has had a change of heart, it can always amend FOIA,

which it has proven itself more than willing to do. See,

e.g., OPEN FOIA Act of 2009, Pub L. No. 111-83,

§ 564, 123 Stat. 2142, 2184 (2009); Electronic Freedom of Information Act Amendments of 1996, Pub. L.

No. 104-231, 110 Stat. 3048 (1996). Congress has

amended FOIA in the wake of judicial rulings it does

not like, see 1 O’Reilly, Federal Information Disclosure § 3:9, and has even “amended FOIA when it

wanted to stop the use of FOIA as an end run around

discovery,” Brinkerhoff, supra, at 595 n.154 (collecting sources discussing Congress’s “1987 amendments

to Exemption 7” stemming from “a gang member’s use

of FOIA to discover law enforcement information”).

And, should Congress allow an honest reading of

Exemption 5’s text to stand, pessimism need not rule

the day. “In FOIA, after all, a new conception of Government conduct was enacted into law, a general philosophy of full agency disclosure.” Klamath, 532 U.S.

at 16 (internal quotation marks and citation omitted).

“Congress believed that this philosophy, put into

practice, would help ‘ensure an informed citizenry, vital to the functioning of a democratic society.’” ’Tax

Analysts, 492 U.S. at 142 (1989) (quoting NLRB v.

Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)).

Giving Exemption 5 its fair compass, and nothing

more, lives up to these ideals, and ensures that the

50a

workings of the Executive Branch are transparent to

the American people.

V.

Like so many other courts of appeals, today our

court disregards the plain text of Exemption 5 and

continues a long history of judicial deference to Executive secrecy. Because I disagree with that approach

and do not think we should perpetuate this interpretation of Exemption 5, I respectfully dissent.

THOMAS, Chief Judge, concurring in part and dissenting in part:

I join Judge Wardlaw’s dissent in full. I also agree

with the majority opinion’s holding that the Federal

Aviation Administration (“FAA”) did not meet its burden to show that it conducted an adequate search for

documents responsive to Jorge Rojas’s Freedom of Information Act (“FOIA”) request. I write separately to

observe that, even if the consultant corollary formed

part of Exemption 5, it would not protect the specific

information sought in this case.

Rojas’s FOIA request was for “information regarding the empirical validation” of the FAA’s 2015

“biographical assessment[.]” These types of validation

studies are addressed in the United States Equal Employment Opportunity Commission’s Uniform Guidelines on Employee Selection Procedures. See generally

29 C.F.R. pt. 1607. The Uniform Guidelines require

that any employment screening test that results in

adverse impact on members of any race, sex, or ethnic

group must be validated by study, and the Uniform

51a

Guidelines establish detailed criteria for such validation studies. 29 C.F.R. §§ 1607.3(A), 1607.5.

Most importantly for our purposes, the Uniform

Guidelines require employers and agencies to maintain documentation of the validation studies and

make the studies available for review. Specifically,

the Uniform Guidelines provide that “[a]ny employer

… which uses a selection procedure as a basis for any

employment decision” “should maintain and have

available” documentation of the selection procedure’s

adverse impact, if any, and evidence of its validity. 29

C.F.R. §§ 1607.5(D), 1607.15, 1607.16(W).

The FAA has recognized its obligation under the

Uniform Guidelines to conduct validation studies and

maintain them. Indeed, the FAA’s Deputy Assistant

Administrator for Human Resource Management testified before Congress that compliance with the Uniform Guidelines “is legally an obligation we have as

an agency,” and that the FAA’s consultants accordingly had “done the validation work to ensure that the

[biographical assessment] is valid.” A Review of the

Federal Aviation Administration’s Air Traffic Controller Hiring, Staffing, and Training Plans: Hearing

Before the Subcomm. on Aviation of the H. Comm. on

Transp. & Infrastructure, 114th Cong. 21 (2016). Further, the FAA has repeatedly confirmed that both the

2014 and 2015 biographical assessments had been

validated. A document that an agency is required to

produce and maintain is not a document prepared in

anticipation of litigation. See Am. Civ. Liberties Union

of N. Cal. v. U.S. Dep’t of Just., 880 F.3d 473, 485-86

(9th Cir. 2018). Thus, Exemption 5 cannot shield the

validation studies from disclosure under FOIA.

52a

In this case, the record indicates that the FAA has

either conducted an inadequate search for documents

it actually possesses or has disregarded the Uniform

Guidelines’ instructions to “maintain and have available” evidence of the biographical assessment’s validation by leaving it in APTMetrics’ possession and attempting to shield it from disclosure under FOIA. 29

C.F.R. §§ 1607.5(D), 1607.15. An agency cannot avoid

its responsibility to conduct and maintain employment screening test validation studies by placing the

studies in third-party hands and claiming that the

studies were prepared in anticipation of litigation.

Such a practice would violate the Uniform Guidelines

and frustrate FOIA’s “policy of broad disclosure of

Government documents[.]” Fed. Bureau of Investigation v. Abramson, 456 U.S. 615, 621 (1982).

Of course, the present record is not fully developed on these issues, and the instant appeal is limited

to summaries of the studies, but the district court will

have the opportunity to revisit these issues on remand.

In sum, I agree with Judge Wardlaw that FOIA’s

Exemption 5 does not afford “consultant corollary”

protection for documents exchanged with a non-governmental entity. However, even if the consultant corollary could be grafted onto Exemption 5, it would not

protect the information Rojas sought in his FOIA request because the information was required to be

maintained and made publicly available by the

agency.

Therefore, I respectfully concur in part and dissent in part.

53a

IKUTA, Circuit Judge, with whom GRABER and

CALLAHAN, Circuit Judges, join, and BUMATAY,

Circuit Judge, joins except as to footnote 1, dissenting

in part:

I write separately because I disagree with the majority’s conclusion that the declaration submitted by

the FAA failed to show that the agency “conducted a

search reasonably calculated to uncover all relevant

documents” in response to Rojas’s FOIA request.

Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985)

(cleaned up).1

“In response to a FOIA request, government agencies must conduct a reasonable search to find any documents responsive to the request.” Hamdan v. Dep’t

of Justice, 797 F.3d 759, 770 (9th Cir. 2015). A search

is reasonable if it is “reasonably calculated to uncover

all relevant documents.” Zemansky, 767 F.2d at 571

(citation omitted). “An agency can demonstrate the

adequacy of its search through ‘reasonably detailed,

nonconclusory affidavits submitted in good faith.’”

Hamdan, 797 F.3d at 770 (quoting Zemansky, 767

F.2d at 571). “Affidavits submitted by an agency to

demonstrate the adequacy of its response are presumed to be in good faith.” Id. In short, our standard

1 I otherwise agree with the majority’s interpretation of “in-

tra-agency memorandums or letters” to include documents prepared by outside consultants hired by the agency to assist in carrying out the agency’s functions. Therefore, I would affirm the

district court’s summary judgment order for the FAA as to the

first two withheld documents, and reverse as to the third document for the reasons stated in the majority opinion.

54a

requires the agency to make a “reasonable search” in

light of the FOIA request at issue. See id.

Here, Rojas’s FOIA request was limited to the following:

I am requesting information regarding the

empirical validation of the biographical assessment noted in the rejection notification.

This includes any report created by, given to,

or regarding APTMetrics’ evaluation and

creation and scoring of the assessment.

Only the search undertaken by the FAA’s Office

of the Chief Counsel is at issue in this appeal. The Office of Chief Counsel’s involvement in the Air Traffic

Control Specialists (ATCS) hiring process was limited

to requesting and obtaining a summary of APTMetrics’ “validation work related to the use of the [Biographical Assessment] as an instrument in the

ATCS selection process,” in connection with potential

future litigation. This assignment to APTMetrics was

narrowly focused: According to the FAA’s Vaughn index, only three documents related to this assignment

were found in the FAA’s legal office.

Given this context, asking the lawyers in the office who had been assigned to provide legal advice regarding the revisions to the ATCS hiring process to

search their files for responsive documents would be

a reasonable response to Rojas’s FOIA request.

And that was exactly what the Office of the Chief

Counsel did. Yvette Armstead, the Assistant Chief

Counsel at the Office of the Chief Counsel’s

55a

Employment and Labor Law Division (AGC-100), is

the lawyer responsible for providing “legal advice related to the hiring process for [ATCS] at the Federal

Aviation Administration.” According to her declaration, which we presume to be in good faith:

AGC-100 conducted a second search for documents responsive to Plaintiff’s request

within our office. This search was reasonably calculated to obtain responsive records

because the attorneys who provided legal advice related to the revisions to the ATCS hiring process were asked to review their records.

There is no dispute that the search described in

this simple statement was reasonable under the circumstances. Rojas does not challenge the scope or

methods of the search described in this statement.

Nor has Rojas argued that the FAA should have expanded its search or found specific categories of additional documents. Cf. Lahr v. Nat’l Transp. Safety

Bd., 569 F.3d 964, 988 (9th Cir. 2009) (rejecting the

claim that the government’s searches were inadequate because they failed to uncover documents referenced in produced records); Lane v. Dep’t of Interior,

523 F.3d 1128, 1139 (9th Cir. 2008) (same). While we

have indicated that an agency’s search might be insufficient if “other databases are likely to turn up the

information requested” or if a standard search turns

up leads “that suggest other records might be located

elsewhere,” Hamdan, 797 F.3d at 772, Rojas does not

suggest there was any such deficiency here. Rojas’s

FOIA request did not require a search of thousands of

56a

files or massive electronic databases, and Rojas does

not argue otherwise.

Given the limited search required by Rojas’s

FOIA request, the agency’s simple description of its

search provided reasonably adequate detail. It describes who was asked to conduct a search—the attorneys who were involved in the ATCS hiring process

revisions, i.e., the only persons in the Office of the

Chief Counsel who would have responsive documents.

It also describes the search methods used and the

body of records examined: the attorneys reviewed

their files for relevant documents. In the context of

this particular search, nothing more was required to

provide a reasonable description of the files searched

or the search procedure used.

The majority fails to provide any reasonable analysis or explanation for its contrary—and conclusory—

holding that the FAA’s declaration “falls short” of

what is required. Maj. at 22. Instead of explaining

why the FAA’s description of its search was not “reasonably detailed” in the particular context of this

case, see Hamdan, 797 F.3d at 770, the majority

makes a rote recital that the declaration “offers no details about how the search was conducted,” because it

fails to describe “the number of attorneys involved,

the search methods they used, the body of records

they examined, or the total time they spent on the

search.” Maj. at 22. This criticism is not reasonable.

The declaration provides all relevant information: the

office that conducted the search, the persons asked to

conduct the search, the search procedure, and the

search scope. Although the declaration does not state

how many attorneys were involved, or how much time

57a

was spent on their search, the majority fails to explain

why the lack of such details here makes the information that was provided fatally inadequate. While

more details may be needed to demonstrate the adequacy of a search involving large databases in multiple locations and with numerous custodians, it is not

reasonably required in this context.

Nor does our precedent support the majority’s

conclusions. The cases cited by the majority merely

reviewed the agency declarations and approved them.

Maj. at 22 (citing Lane, 523 F.3d at 1139; Citizens

Commission on Human Rights v. FDA, 45 F.3d 1325,

1328 (9th Cir. 1995)). We have never held that specific

details were required or that the absence of such details would render a declaration per se insufficient.

Our case law requires only that an affidavit be “reasonably detailed.” Hamdan, 797 F.3d at 770. What

constitutes a “reasonably detailed” affidavit must—

reasonably—depend on the context of the particular

search. By ignoring the context, the majority requires

an agency to incant magic words, and ignores our

touchstone of reasonableness under the circumstances.

Because the declaration here is “reasonably detailed” to establish that the FAA’s search was adequate in the circumstances presented here, the FAA

is entitled to summary judgment on this issue as a

matter of law.

BUMATAY, Circuit Judge, concurring in part and

dissenting in part:

58a

Our task should have been simple. Exemption 5

of the Freedom of Information Act (“FOIA”) protects

only “inter-agency or intra-agency memorandums or

letters” from disclosure under the Act. 5 U.S.C.

§ 552(b)(5). As Justice Scalia stated, “the most natural meaning of the phrase ‘intra-agency memorandum’ is a memorandum that is addressed both to and

from employees of a single agency” and an “interagency memorandum” is “a memorandum between

employees of two different agencies.” U.S. Dep’t of

Justice v. Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J.,

dissenting). These definitions leave no room for documents created by those outside of an agency’s employment. To me, that is the end of the inquiry and Exemption 5 doesn’t cover consultant work product.

But finding Congress’s work inadequate, the majority picks up its drafting pen and bestows on us a

supposedly better law. Contending that Congress actually adopted sub silentio a “consultant corollary”

through the otherwise clear language of Exemption 5,

the majority now rules that the government no longer

needs to publicly disclose documents made by privatesector consultants for executive agencies.

How does the majority justify this judicial rewrite? It’s purpose all the way down. The majority creates an “escape route from the prison of the text,”2 by

invoking Exemption 5’s supposed purpose and imposing a more faithful—as the majority sees it—version

2 Antonin Scalia & Bryan Garner, Reading Law: The Inter-

pretation of Legal Texts 39 (2012) (“Reading Law”) (quoting Patrick Devlin, The Judge 16 (1979)).

59a

of the law. But invocation of purpose is nothing more

than a “bald assertion of an unspecified and hence unbounded judicial power to ignore what the law says.”

Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1077

(2020) (Thomas, J., dissenting) (quoting Reading Law

343).

Because I do not believe that our limited judicial

role allows us to subvert the plain text of a law to our

own sense of its purpose, I respectfully dissent.

I.

APTMetrics, a private consulting firm independent of the federal government, developed assessment

tests for hiring air traffic controllers for the Federal

Aviation Administration. Jorge Rojas, a rejected applicant, filed suit under FOIA seeking three documents summarizing the assessment tests created by

APTMetrics.3 The FAA sought to withhold the documents under Exemption 5.4 But APTMetrics, all

3 That the documents at issue were summaries rather than

the test themselves makes little difference under the plain

meaning of Exemption 5. The exemption focuses on who created

the memorandums or letters, not on their purpose or substance.

But see Maj. Op. 18 n.3 (finding that the documents were summaries to be critical).

4 Exemption 5 states, in full:

This section does not apply to matters that

are— … 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, provided that the

deliberative process privilege shall not apply

60a

agree, is not an agency under FOIA. See 5 U.S.C.

§ 551(1) (An “agency” must be an “authority of the

Government of the United States.”). Nor has the FAA

argued that APTMetrics consultants are so embedded

within its structure that they should be deemed FAA

employees.5 By its plain text then, Exemption 5

doesn’t protect APTMetrics’s documents from disclosure.6

to records created 25 years or more before the

date on which the records were requested[.]

5 U.S.C. § 552(b)(5). A document, thus, must satisfy two conditions to qualify as a FOIA withholding exemption. See Dep’t of

Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8

(2001). Since the first condition—being an “intra-agency memorandum[]”—is not met in this case, I do not address the second

condition.

5 Rather, it is the opposite. The FAA purposefully held out

APTMetrics as “outside experts” who developed and independently validated the assessment tests.

6 With respect, I believe Judge Collins’s interpretation of

Exemption 5 suffers from two flaws. First, Judge Collins seems

to view “intra-agency memorandums” as merely a geographical

condition—only requiring that the memorandum “be intraagency,” meaning within the agency. See Collins Concurrence at

24. Setting aside that no one would ever use the word “intraagency” as a location, FOIA only applies if the document is

within the agency in the first place. See Berry v. Dep’t of Justice,

733 F.2d 1343, 1349 (9th Cir. 1984) (limiting “agency records” to

information “in the possession of an agency”). So this interpretation effectively reads the term out of the statute. It’s also unclear

how Judge Collins’s location-based reading applies to “interagency” memorandums—does it mean that the document is simultaneously present in two agencies?

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The majority disputes none of this; yet, it concludes that Exemption 5 applies nonetheless based on

FOIA’s supposed purpose and a desire to avoid the parade of horribles it envisions if we were to give the

provision its plain meaning. The majority first divines

from FOIA’s legislative history that, despite the exemption’s limited scope, Congress’s “purpose” was to

broadly “shield[] privileged communications from disclosure.” Maj. Op. 13. Second, the majority fears that

Exemption 5’s plain meaning would chill communications between consultants and government employees, resulting in “poorer” decisionmaking and policies.

Maj Op. 13 (quoting NLRB v. Sears, Roebuck & Co.,

421 U.S. 132, 150 (1975)). Finally, the majority thinks

an ordinary-meaning interpretation of the provision

Second, Judge Collins believes Exemption 5’s second condition—that the document would not be “available by law to a

party”—means that “intra-agency memorandum” refers to any

document that falls “within the agency’s litigation privileges.”

See Collins Concurrence at 26-27. Yet under this reading, “intraagency” does no work at all. And we turn grammar on its head if

we treat a limiting dependent phrase, like Exemption 5’s second

condition, as totally eliminating the words to which it is dependent.

At the end of the day, even if Judge Collins’s interpretation

were permissible, I continue to believe our duty is to “seek the

best reading of the statute by interpreting the words of the statute, taking account of the context of the whole statute, and applying the agreed upon semantic canons.” Brett M. Kavanaugh,

Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2121

(2016) (emphasis added). In this case, the best and “most natural” reading of the phrase is that the “memorandums” must be

“to and from employees of a single agency.” Julian, 486 U.S. at

18 n.1 (Scalia, J., dissenting).

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would potentially vitiate the attorney-work-product

privilege of an agency’s outside counsel. Id. at 15.

To accommodate these considerations, the majority engrafts a “consultant corollary” to Exemption 5,

whereby any document may now be subject to exemption if drafted by anyone “act[ing] in a capacity functionally equivalent to that of an agency employee in

creating the document.” Maj. Op. 17.

II.

A.

In my view, we can never let perceived legislative

purpose eclipse the ordinary meaning of statutory

text. If a statute has a clear and natural reading, as

is the case here, we are stuck with that meaning—

even if we believe Congress might disagree with the

outcome in a particular case. This limited judicial role

derives directly from the structure of our Constitution

and separation-of-powers principles.

Lawmaking is not a tidy affair. It can be a

“clumsy, inefficient, even unworkable” process. INS v.

Chadha, 462 U.S. 919, 959 (1983). That is by design.

See id. The Constitution requires bicameralism—

meaning that legislation must pass both the House

and Senate with their respective rules and committees. Id. at 948-49 (citing Article I of the Constitution).

When Congress is at its full complement, it consists of

535 legislators from various backgrounds, regions,

and beliefs, split into two chambers with different

constituencies and political interests. Id. at 948-51;

Apportionment Act of 1911, 37 Stat. 13, 13-14;

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Apportionment Act of 1929, 46 Stat. 21, 26-27. The

Constitution also requires presentment to the President, who provides a separate “national perspective”

to legislation. Chadha, 462 U.S. at 948 (simplified).

Given this, I am skeptical that the majority could

so easily discern the legislative purpose behind the

FOIA exemptions. When we sit en banc, we’re only 11

judges—yet, it is often difficult to find agreement

among our small number. It is doubtful that we could

extract a common purpose from a body almost 50

times as large, as the majority purports to do.

Legislation, moreover, is often about the art of

compromise. Even when Congress unites to tackle a

national issue, “its Members may differ sharply on the

means for effectuating that intent.” Bd. of Governors

of Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S.

361, 374 (1986). Given the clash of purposes, interests, and ideas, “the final language of the legislation

may reflect hard-fought compromises.” Id. After all,

no legislation pursues its purposes at all costs, so “it

frustrates rather than effectuates legislative intent

simplistically to assume that whatever furthers the

statute’s primary objective must be the law.” Pension

Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633,

646-47 (1990) (simplified). In other words, when we

allow legislative purpose to override statutory text,

we undo these legislative compromises and recalibrate any balances struck by Congress. And we do so

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without any limiting principle except our own discretion.7

More troublesome still is the majority’s reliance

on legislative history to determine Congress’s purpose

in enacting FOIA exemptions. See Maj. Op. 13-14

(quoting a single Senate committee report to represent Congress’s intent to encourage “frank discussion

of legal and policy matters”). But there are significant

problems with using legislative history to single out

congressional intent. See Fazaga v. FBI, 965 F.3d

1015, 1081-82 (9th Cir. 2020) (Bumatay, J., dissenting

from denial of rehearing en banc). In any event,

judges have found other congressional purposes in

FOIA, too. For one, the Supreme Court has said that

the “core purpose” of FOIA is to “contribut[e] significantly to public understanding of the operations or activities of the government.” U.S. Dep’t of Def. v. Fed.

Labor Relations Auth., 510 U.S. 487, 495 (1994) (simplified). That is why the Court has continuously

7 To be clear, this doesn’t mean we cannot interpret statutes

based on their context. If contextual clues help give meaning to

the words of the statute, we may readily employ them. See Reading Law 153 (“Perhaps no interpretive fault is more common

than the failure to follow the whole-text canon, which calls on

the judicial interpreter to consider the entire text, in view of its

structure and of the physical and logical relation of its many

parts.”). For example, here, in FOIA, two other exemptions specifically authorize the non-disclosure of documents created by

non-government employees. See 5 U.S.C. § 552(b)(4), (8). That

Congress did not include such express language in Exemption 5

is strong contextual evidence against the so-called consultant

corollary. But what we can’t do is try to discern some overriding

extratextual policy purpose to then eclipse the plain meaning of

statutes.

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reaffirmed that FOIA requires “full agency disclosure” unless exempted under “clearly delineated statutory language.” Id. (quoting Dep’t of Air Force v.

Rose, 425 U.S. 352, 360-61 (1976)).

If purpose rather than text governs, which purpose prevails here? While some legislators may have

felt that protecting government privileges was of paramount importance, others may have believed that

achieving government transparency was more critical. As judges, we are not well-situated to step into

the shoes of our elected representatives and select a

purpose to guide our interpretation. See Diamond v.

Chakrabarty, 447 U.S. 303, 317 (1980) (“[T]he balancing of competing values and interests” requires “the

kind of investigation, examination, and study that

legislative bodies can provide and courts cannot.”).

That is exactly what the majority does, however, by

prophesying what Congress would have enacted if

only it better understood its own purposes. See, e.g.,

Maj. Op. 14 (“A Congress whose aim was to further

the purposes just discussed would not have limited

Exemption 5’s coverage to communications authored

by agency employees.”).

Indeed, Exemption 5’s limitation to inter- and intra-agency materials may have been the compromise

between Congress’s dueling purposes. By ignoring its

plain meaning, we subvert any legislative compromise baked into its enacted text. Furthermore, it’s not

clear how else Congress could have expressed its rejection of the consultant corollary. After all, the language of Exemption 5 does precisely that—it leaves

no room for consultant documents to be exempted.

But that wasn’t enough for the majority. Perhaps, a

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congressional amendment to Exemption 5—“and we

really mean it”—would suffice.

Most disconcerting about the approach articulated by the majority is the threat to the separation of

powers. Any student of the Constitution can recite

that Congress makes the laws and judges interpret

them. See Patchak v. Zinke, 138 S. Ct. 897, 904 (2018)

(“To the legislative department has been committed

the duty of making laws; … and to the judiciary the

duty of interpreting and applying them[.]”). By reading a statute not by its text, but its purpose, judges

come dangerously close to legislating—except without

the political accountability.

If there was any doubt about this concern, look no

further than the majority’s test for when a document

meets the “consultant corollary” exemption. It states

that any document drafted by anyone “act[ing] in a

capacity functionally equivalent to that of an agency

employee in creating the document” is subject to the

protection of Exemption 5. Maj. Op. 17. So instead of

the straightforward language used in Exemption 5,

citizens must now parse the majority’s newfangled,

multi-factor test8 to gain the disclosure of government

documents. While this test might make normative

sense, and congressional staffers might admire its

8 As I understand it, the majority’s consultant corollary test

requires (1) establishing what an “agency employee” does for a

particular agency; and (2) determining whether the consultant

acted in a “functionally equivalent” capacity. No doubt further

litigation will be required to refine the meaning of each step and

establish the prongs for each factor and, of course, the subprongs

to the prongs for each factor.

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drafting, none of it is derived from the text of Exemption 5 or frankly any other legislation. We simply

made it up. Cf. California v. EPA, 978 F.3d 708, 718

(9th Cir. 2020) (“There is a word for picking the law

that determines a party’s future conduct: legislation[.]”) (emphasis omitted).

B.

The same goes for the majority’s concerns for the

consequences of interpreting Exemption 5 according

to its text. We don’t supersede or amend congressional

enactments simply because we (or our belief that Congress would) disagree with the outcome in a particular case. Our job requires neutrality to a statute’s consequences. See Griffin v. Oceanic Contractors, Inc.,

458 U.S. 564, 576 (1982) (“The remedy for any dissatisfaction with the results in particular cases lies with

Congress and not with th[e] [c]ourt[s].”). We don’t reverse engineer our interpretation of a law by surveying the outcomes it produces and then selecting the

reading that reaches our favored results. That gets it

backwards. See Baker Botts LLP v. ASARCO LLC,

576 U.S. 121, 134 (2015) (A “harsh outcome” does not

justify deviating from “the import of Congress’ chosen

words.”). So it’s inappropriate to create a “consultant

corollary” based on fear that not doing so would discourage outside consultants from working with agencies. See Maj. Op. 14.

For what it’s worth, the majority’s overwrought

concern for the protection of an agency’s outside counsel’s work product is also a bit of a red herring. See

Maj. Op. 15. First, that is not this case. APTMetrics

is not outside counsel and no one suggests it is the

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functional equivalent of one. If such a case arises in

the future, we can decide whether the attorney-client

privilege is so sacrosanct that we must override

FOIA’s statutory text; but there is certainly no reason

to do that here. Second, I am not so sure that such a

case would arise. The FAA is not like a normal client.

It can’t just retain any lawyer of its choice. It is, after

all, an Executive agency. 49 U.S.C. § 106. It has a cadre of lawyers in its chief counsel’s office.9 It sits

within the Department of Transportation with its

own team of lawyers. 49 U.S.C. § 106(a). And, by law,

the Department of Justice provides it legal counsel

and must represent it in all litigation. See 28 U.S.C.

§§ 514, 516; 5 U.S.C. § 3106. So, I seriously doubt that

the need to protect privileged communications of outside counsel is so grave and so stark that we must discard the plain reading of the text enacted by Congress.10

9 See Office of the Chief Counsel, Federal Aviation Admin-

istration, https://www.faa.gov/about/office_org/headquarters_offices/agc/ (Sept. 19, 2017, 2:36 PM).

10 Judge Collins contends that we must confront the attor-

ney-client issue here because another agency—the FDIC—may

potentially need to rely on outside attorneys. See Collins Concurrence 30-31. I think this example only proves my point. Unknown issues may pop up in such a situation. For example, the

FDIC guidelines governing outside counsel cited by Judge Collins may impact our analysis. See id. at 30-31. We also don’t

know if these hypothetical outside counsel are hired as special

Government employees. See 18 U.S.C. § 2020(a). Or if other federal laws, such as conflicts and ethics requirements, apply to outside counsel. Point being, we don’t need to decide this question

in this case.

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C.

I acknowledge that Justice Scalia, after analyzing

the “natural meaning” of Exemption 5, went on to consider FOIA’s purpose and endorse a consultant corollary. Julian, 486 U.S. 1, 18 n.1 (Scalia, J., dissenting).

In my view, the principles that Justice Scalia spent a

lifetime advocating—textualism, separation of powers, deference to the political branches11—are more

important than any one of his individual decisions, let

alone dicta buried in a footnote of a dissent he authored more than 30 years ago. That all judges, to varying degrees, adhere to the plain meaning of statutory

text is Justice Scalia’s lasting legacy. It is more faithful to that legacy to maintain that the plain meaning

of the text must prevail here.

III.

I concur with the majority that the FAA was not

required to search APTMetrics’ records for responsive

documents. But, as Judge Ikuta explains in her wellreasoned dissent, the majority was also incorrect that

FAA’s search was inadequate. Most fundamentally,

however, because a perceived legislative purpose

doesn’t eclipse the natural meaning of statutory text,

I respectfully dissent from the judgment of the court.

11 See, e.g., Neil M. Gorsuch, Of Lions and Bears, Judges

and Legislators, and the Legacy of Justice Scalia, 66 Case W.

Res. L. Rev. 905, 912 (2016).

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APPENDIX B

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

JORGE ALEJANDRO ROJAS,

Plaintiff-Appellant,

v.

FEDERAL AVIATION

ADMINISTRATION,

Defendant-Appellee.

No. 17-55036

D.C. No.

2:15-cv-05811-CBM-SS

ORDER AND

AMENDED 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

Amended June 18, 2019

Before: Kim McLane Wardlaw and Morgan Christen,

Circuit Judges, and Donald W. Molloy,* District

Judge.

Order;

Opinion by Judge Molloy;

* The Honorable Donald W. Molloy, United States District Judge

for the District of Montana, sitting by designation.

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Partial Concurrence and Partial Dissent by Judge

Christen

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.

** This summary constitutes no part of the opinion of the court.

It has been prepared by court staff for the convenience of the

reader.

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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.

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.

ORDER

The opinion filed on April 24, 2019, and reported

at 922 F.3d 907 (9th Cir. 2019), is amended at footnote 1. The amended opinion is filed simultaneously

with this Order, along with the unchanged dissent.

The parties may file petitions for rehearing and petitions for rehearing en banc in response to the

73a

amended opinion, as allowed by the Federal Rules of

Appellate Procedure.

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

74a

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, selfconfidence, dependability, resilience, stress 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.

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).

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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 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

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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 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).

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 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).

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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).

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.

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A. Search for Responsive Documents3

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. 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

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.

79a

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 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”

80a

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, “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

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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 intraagency 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 “intraagency” 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 “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

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supplied by outside contractors.” At the same time,

the court concluded that the records “constitute interagency 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 the consultant corollary to Exemption 5. Because the consultant corollary is contrary to

4 In an unpublished memorandum disposition, Center for Biolog-

ical 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.

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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

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confidential.” 5 U.S.C. § 552(b)(4) (emphasis added).

Exemption 8 applies 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 “intraagency” 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

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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 & 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

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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:

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

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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 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

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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

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 “intraagency” 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.

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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”).

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

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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 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

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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 “intraagency” documents, and Exemption 5 does not apply.

Thus, we need not address 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

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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. 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

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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.

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

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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.

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

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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 assessment for use in 2015, and

APTMetrics worked on those revisions.

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).

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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 intraagency 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

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.”

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communications and work product, and that they

were pre-decisional and deliberative.

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

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had previously recognized that those materials were

privileged in discovery). These principles alone dictate the appropriate resolution in this case: because

the validation 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 inhouse, 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

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.

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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 of broad disclosure of Government

documents in order to ensure an informed citizenry[.]’” Ante at 15 (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

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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).

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

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.”).

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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-agency memorandums” within the

scope of Exemption 5. See Ante at 13-14.

I read the statute differently. Exemption 5 states

tha

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