Petition for Writ of Certiorari — Tony B. Jobe, Esquire, Petitioner v. National Transportation Safety Board

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APPENDIX A

United States Court of Appeals for the Fifth

Circuit

________________

No. 20-30033

________________

Filed

June 17, 2021

TONY B. JOBE, ESQUIRE,

Plaintiff—Appellee,

versus

NATIONAL TRANSPORTATION SAFETY BOARD,

Defendant—Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:18-CV-10547

Before CLEMENT, HO, and DUNCAN, Circuit

Judges.

STUART KYLE DUNCAN, Circuit Judge:

Aircraft disasters are investigated by a federal

agency called the National Transportation Safety

Board (NTSB). The inquiry usually includes representatives from the aircraft’s manufacturer or operator, who are uniquely positioned to shed light on what

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went wrong. This case, involving the tragic crash of a

sightseeing helicopter in Hawaii, asks whether communications between the NTSB and such outside consultants must be disclosed to the public under the

Freedom of Information Act (FOIA).

Answering that question turns on the scope of

FOIA’s “Exemption 5,” which shields privileged “intra-agency” documents from disclosure. See 5 U.S.C.

§ 552(b)(5). Several circuits, including ours, read Exemption 5 to protect communications not only among

an agency’s employees, but also with some

non-agency experts whose input the agency has solicited. This is known as the “consultant corollary.” See

Hoover v. U.S. Dep’t of the Interior, 611 F.2d 1132,

1137-38 (5th Cir. 1980); Wu v. Nat’l Endowment for

Humans., 460 F.2d 1030, 1032 (5th Cir. 1972). The

district court ruled the corollary did not apply to documents the NTSB exchanged during its investigation

with representatives from the helicopter’s operator

and manufacturers. Relying on Department of the Interior v. Klamath Water Users Protection Association,

532 U.S. 1 (2001), the court reasoned the corollary

does not protect even privileged communications with

“self-interested” consultants like those.

The district court erred. Klamath does not stand

for the broad principle that a consultant’s “self-interest” always excludes it from Exemption 5. And,

properly applied, the consultant corollary squarely covers the NTSB’s communications with the non-agency

parties here. By necessity, the NTSB solicits technical

input from entities whose aircraft are under investigation. But the process only finds facts and issues

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safety recommendations; it does not assign liability or

have adverse parties, and its conclusions are not admissible in litigation. Moreover, the agency closely supervises non-agency parties and controls the release

of any non-public information. Subjecting the NTSB’s

communications with consultants to broad public disclosure would inhibit the agency’s ability to receive

candid technical input from those best positioned to

give it.

We therefore conclude that the outside parties solicited by the NTSB qualify as “consultants” under

Exemption 5’s corollary. That does not end the case,

however—deeming documents “intra-agency” is only

the first step in a two-part assessment. See Klamath,

532 U.S. at 9 (“[T]he first condition of Exemption 5 is

no less important than the second”). Exemption 5 does

not shield all intra-agency documents from disclosure, only those which are “normally privileged in the

civil discovery context.” N. L. R. B. v. Sears, Roebuck

& Co., 421 U.S. 132, 149 (1975). Cf. U.S. Dep’t of Just.

v. Julian, 486 U.S. 1, 14 (1988) (Exemption 5 does not

apply to documents that are “routinely available” in

discovery). On remand, the district court will need to

undertake the second facet of the Exemption 5 inquiry: determining whether the documents at issue

are subject to a litigation privilege ordinarily available to a government agency. See, e.g., U.S. Fish &

Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 783

(2021) (“Exemption 5 incorporates the privileges

available to Government agencies in civil litigation,

such as the deliberative process privilege, attorney-client privilege, and attorney work-product privilege.”).

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We reverse the district court’s judgment and remand for further proceedings consistent with this

opinion.

I.

A.

In 2011, a helicopter crashed while on a sightseeing tour in Hawaii, killing the pilot and all four passengers. The helicopter was operated by a U.S. company, Blue Hawaiian Helicopters. It was manufactured by a French company, Eurocopter, and its engine was manufactured by another French company,

Turbomeca.

Aircraft accidents are investigated by the NTSB,

which conducts “fact-finding proceedings” to determine probable cause and issue safety recommendations. See 49 C.F.R. § 831.4 (2016); 49 U.S.C.

§ 1131(a)(1)(A). 1 The agency does not assess “rights or

liabilities,” and its final report cannot be admitted in

a civil action. 49 C.F.R. §§ 831.4, 835.2; 49 U.S.C.

§ 1154(b). 2 Investigations are supervised by an “Investigator in Charge” (“IIC”), 49 C.F.R. § 831.8, who

may designate “parties” to the investigation. Id.

§ 831.11(a)(1). A party is an entity “whose employees,

1 All citations, unless otherwise noted, are to the 2016 edi-

tion of the Code of Federal Regulations, which was the version

in effect at the time of the accident, investigation, and Plaintiff’s

FOIA requests.

2 As discussed infra, the evidentiary bar does not apply to

factual reports made at earlier stages of the investigation or the

purely factual material reproduced in the final report.

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functions, activities, or products were involved in the

accident or incident and who can provide suitable

qualified technical personnel actively to assist in the

investigation.” Ibid. Parties are under the NTSB’s direct supervision. Id. §§ 831.8(b); 831.11(a)(2).

Non-agency parties must sign a “Statement of Party

Representatives to NTSB Investigation,” id.

§ 831.11(b), which commits them not “to prepare for

litigation or pursue other self-interests.” Parties may

not be represented “by any person who also represents claimants or insurers,” or “occup[ies] a legal position,” id. § 831.11(a)(3), nor may they release information obtained during an investigation, subject to

specific exceptions, id. § 831.13(b).

As part of the helicopter crash investigation, the

IIC appointed party representatives from Blue Hawaiian and the Federal Aviation Administration. Under an international convention, a French agency (the

“Bureau of Enquiry and Analysis for Civil Aviation

Safety,” or “BEA”) served as an accredited representative. See CONVENTION ON INT’L CIVIL AVIATION, Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S. 295. 3

3 Signatories to this convention, commonly called the “Chicago Convention,” see Wardair Canada, Inc. v. Fla. Dep’t of Revenue, 477 U.S. 1, 9 (1986), established the International Civil

Aviation Organization (“ICAO”), which adopts uniform standards for international accident investigations. Convention, art.

37(k), 61 Stat. 1180; see also Earl v. Boeing Co., --- F.Supp.3d ---,

2021 WL 274435, at *3 (E.D. Tex. Jan. 27, 2021) (recounting history of the Chicago Convention). Annex 13 provides that accredited representatives from the countries in which the aircraft was

operated, designed, and manufactured can participate in the investigation and designate technical advisors to assist. ICAO

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The BEA assigned technical advisors from Eurocopter

and Turbomeca to assist. The advisors were allowed

to inspect the crash site, take notes, discuss accident

scenarios with other team members, and perform

other investigative activities. Although supervised by

the BEA, the advisors were subject to the IIC’s control. ICAO Annex 13, § 5.25.

B.

In 2014, after the NTSB finished its investigation,

Tony Jobe submitted an information request under 49

C.F.R. § 837.1-4. 4 Jobe is a lawyer who represents the

families of the crash victims. Although the NTSB denied Jobe’s request because it lacked the required affidavit, see id. § 837.4(b)(2), the agency converted it

into a FOIA request. The NTSB then searched 13,000

pages for any records related to the crash and disclosed about 4,000 pages to Jobe. Of the 9,000 undisclosed pages, 2,349 were withheld under Exemption

Annex 13, §§ 5.18-5.20, 5.24. The advisors are supervised by the

accredited representatives, § 5.24.1, and any participation is

subject to the IIC’s control, § 5.25. We note that at least one court

has questioned whether annexes to the Chicago Convention have

binding legal effect or should even be considered by federal

courts. See Earl, --- F.Supp.3d ---, 2021 WL 274435, at *4-6. Because neither party here questions the legal import of the annexes and our conclusion does not depend on their validity, we

need not weigh in on that debate.

4 Section 837 provides a process, separate from FOIA, by

which parties in litigation not involving the NTSB may request

“material”—defined to include “any type of physical or documentary evidence”—that is “contained in NTSB files” or has been

“acquired by . . . the NTSB in the performance of [its] official

duties.” See 49 C.F.R. §§ 837.1, 837.2.

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5, which exempts “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).

In 2016, Jobe submitted a second FOIA request

for eleven specific categories of documents relating to

the on-scene phase of the investigation. The NTSB determined it had already disclosed all releasable documents but nonetheless offered to re-review the 2,349

withheld pages. The agency ultimately released another 159 to Jobe.

Seeking additional disclosures, Jobe filed suit in

the Eastern District of Louisiana. See 5 U.S.C.

§ 552(a)(4)(B). In response, the NTSB produced a

Vaughn index 5 describing 215 withheld documents

responsive to the eleven categories in Jobe’s second

FOIA request. Both parties moved for summary judgment.

The district court rejected Jobe’s claims that the

Vaughn index was incomplete and that the NTSB

failed to segregate releasable from nonreleasable material. The court also determined that the NTSB

properly invoked Exemption 5 as to several internal

documents. (Jobe does not challenge those rulings on

appeal.) The court, however, ruled that documents

5 A Vaughn index describes documents identified as responsive to a FOIA request but not produced and explains why they

have been withheld. See Cooper Cameron Corp. v. U.S. Dep’t of

Labor, Occupational Safety & Health Admin., 280 F.3d 539, 544

n.12 (5th Cir. 2002); see also Vaughn v. Rosen, 484 F.2d 820,

827-28 (D.C. Cir. 1973).

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sent among the NTSB, Blue Hawaiian, Eurocopter,

and Turbomeca were not “intra-agency” and so did not

qualify for withholding under Exemption 5. Specifically, the court declined to apply the “consultant corollary,” which deems “intra-agency” certain communications with or materials produced by outside experts

who aid in agency decision-making. See Hoover, 611

F.2d at 1137-38; Wu, 460 F.2d at 1032. The court thus

granted Jobe partial summary judgment and ordered

the NTSB to produce about 125 pages. The order was

stayed pending the agency’s appeal.

II.

We review a summary judgment de novo. Digital

Drilling Data Sys., L.L.C. v. Petrolink Servs., Inc., 965

F.3d 365, 373 (5th Cir. 2020). FOIA exemptions are

“exclusive” and “narrowly construed.” Dep’t of the Air

Force v. Rose, 425 U.S. 352, 361 (1976) (citations omitted); see also Sharyland Water Supply Corp. v. Block,

755 F.2d 397, 398 (5th Cir. 1985) (Because “FOIA is

designed to promote the disclosure of information ...

[,] exemptions from it are not to be read broadly.”) (citations omitted). Disclosure is strongly favored. U.S.

Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). Nonetheless, “FOIA expressly recognizes that important

interests are served by its exemptions, and those exemptions are as much a part of FOIA’s purposes and

policies as the statute’s disclosure requirement.” Food

Marketing Inst. v. Argus Leader Media, 139 S. Ct.

2356, 2366 (2019) (cleaned up); see also FBI v. Abramson, 456 U.S. 615, 630-31 (1982) (“While Congress established that the basic policy of [FOIA] is in favor of

disclosure, it recognized the important interests

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served by the exemptions.”). The government bears

the burden to prove that documents fall within an exemption. U.S. Dep’t of Just. v. Tax Analysts, 492 U.S.

136, 141 n.3 (1989); Batton v. Evers, 598 F.3d 169, 175

(5th Cir. 2010); see also 5 U.S.C. § 552(a)(4)(B) (“[T]he

burden is on the agency to sustain its action.”).

III.

The district court concluded that neither the helicopter’s French manufacturers (Eurocopter and Turbomeca), nor the American company leasing the helicopter at the time of the crash (Blue Hawaiian), qualified as “consultants” under the corollary because

they were “self-interested.” While recognizing those

companies’ employees were “there to help NTSB’s investigation,” the court reasoned “they were also undoubtedly there to collect information to prepare for

inevitable future litigation.” Their participation, the

court noted, also conferred a “significant benefit” on

the companies: unlike the families of the crash victims, the companies had access to the “investigation

file” and “editorial license” over the agency’s factual

reports and ultimate probable cause determination.

The court relied on language from the Supreme

Court’s opinion in Klamath—namely its observation

that a consultant typically “does not represent an interest of its own, or the interest of any other client,

when it advises the agency that hires it.” 532 U.S. at

11.

On appeal, the NTSB asserts the district court

erred in refusing to apply the corollary to communications among non-agency parties to an NTSB

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investigation. The agency argues that its investigations are non-adversarial fact-finding proceedings

and that non-agency participants are overseen by the

NTSB and prohibited from disclosing non-public information absent agency approval. The agency further argues that the district court read Klamath too

broadly and that the “parties” here are not “self-interested” within the meaning of that decision.

Whether the consultant corollary applies to

non-agency participants in NTSB investigations is an

issue of first impression in the federal circuit courts.

Though a close question, we conclude that Blue Hawaiian, Eurocopter, and Turbomeca qualify as consultants. We therefore reverse the district court’s

judgment and remand for the court to determine

whether the withheld documents are subject to any

litigation privilege.

A.

FOIA requires federal agencies to disclose documents within their control upon request, unless the

documents fall within one of nine enumerated exceptions. See 5 U.S.C. § 552(b)(1)-(9). Exemption 5 protects 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 an agency.” Id. § 552(b)(5). The exemption thus

embodies “two conditions: [a document’s] source must

be a Government agency, and it must fall within the

ambit of a privilege against discovery under judicial

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standards that would govern litigation against the

agency that holds it.” Klamath, 532 U.S. at 8. 6

This case involves the first condition and, specifically, the scope of the statutory term “intra-agency.”

Every circuit to address this issue, including ours, has

concluded that intra-agency communications are not

limited to those between or among an agency’s employees. See Hoover, 611 F.2d at 1138 (concluding that

an appraisal report, although prepared by an outside

expert, was “an intra-agency memorandum within

the meaning of Exemption 5” (citing Wu, 460 F.2d at

1032)). 7 Rather, “intra-agency” also embraces “records of communications between an agency and outside consultants ... if they have been created for the

purpose of aiding the agency’s deliberative process.”

Pub. Citizen, Inc. v. Dep’t of Just., 111 F.3d 168, 170

(D.C. Cir. 1997) (cleaned up); see also Ryan v. Dep’t of

Just., 617 F.2d 781, 789 (D.C. Cir. 1980) (Exemption

5 “was created to protect the deliberative process of

the government, by ensuring that persons in an advisory role would be able to express their opinions freely

6 See also Sierra Club, 141 S. Ct. at 783 (listing various liti-

gation privileges incorporated by Exemption 5); Sears, 421 U.S.

at 148 (“Exemption 5 withholds from a member of the public documents which a private party could not discover in litigation

with the agency.”).

7 See also McKinley v. Bd. of Govs. of the Fed. Rsrv. Sys., 647

F.3d 331, 336-39 (D.C. Cir. 2011); Hunton & Williams v. U.S.

Dep’t of Just., 590 F.3d 272, 279-80 (4th Cir. 2010); Stewart v.

U.S. Dep’t of the Interior, 554 F.3d 1236, 1244-45 (10th Cir.

2009); Tigue v. U.S. Dep’t of Just., 312 F.3d 70, 77-78 (2d Cir.

2002); Gov’t Land Bank v. Gen. Servs. Admin., 671 F.2d 663, 666

(1st Cir. 1982).

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to agency decision-makers without fear of publicity.”). 8 While the Supreme Court has neither embraced nor rejected this consultant corollary, three

Justices (Scalia, joined by White and O’Connor) once

called it a “permissible and desirable reading of the

statute” because it is

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

8 No circuit has rejected the consultant corollary. But see

Lucaj v. Fed. Bureau of Investigation, 852 F.3d 541, 548 (6th Cir.

2017) (casting doubt, in dicta, on the “textual justification” for

the corollary in case addressing a related Exemption 5 doctrine).

The en banc Ninth Circuit recently overturned a panel opinion

that had found no textual basis for the corollary. See Rojas v.

FAA, 989 F.3d 666 (9th Cir. 2021) (en banc) (overruling Rojas v.

FAA, 927 F.3d 1046 (9th Cir. 2019)). Various opinions debated

the corollary’s textual bona fides. Compare Rojas, 989 F.3d at

673 (concluding “‘intra-agency’ in Exemption 5 does not definitively resolve the interpretive question” and therefore considering “the purposes served by Exemption 5”), and id. at 678-83

(Collins, J., concurring) (defending this reading of “intra-agency”), with id. at 685 (Wardlaw, J., concurring in part and

dissenting in part) (“Exemption 5’s text is crystal clear: documents or communications exchange with outside consultants do

not fall within that exemption.”), id. at 690-91 (Thomas, C.J.,

concurring in part and dissenting in part) (agreeing with Judge

Wardlaw that Exemption 5 does not encompass a “consultant

corollary”), and id. at 693 (Bumatay, J., concurring in part and

dissenting in part) (arguing Exemption 5’s “plain text” “leave[s]

no room for documents created by those outside of an agency’s

employment”). Because our circuit precedent accepts the corollary, see Wu, 460 F.3d at 1032, we need not enter into this debate.

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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.

Julian, 486 U.S. at 1, 18 n.1 (Scalia, J., dissenting). 9 This explanation tracks our circuit’s rationale

for adopting the corollary. See Wu, 460 F.2d at 1032

(“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.”

(quoting Soucie v. David, 448 F.2d 1067, 1078 n.44

(D.C. Cir. 1971))).

B.

In finding the consultant corollary inapplicable

because of the companies’ “self-interest,” the district

court relied principally on Klamath. The court read

that decision too broadly, however.

Klamath involved documents exchanged between

the Department of the Interior and Indian tribes

9 The Julian majority did not address this issue “because it

concluded that the documents [at issue] would be routinely discoverable in civil litigation and therefore would not be covered

by Exemption 5 in any event.” Klamath, 532 U.S. at 10 n.2 (citing

Julian, 486 U.S. at 11-14); see also Julian, 486 U.S. at 18 n.1

(Scalia, J., dissenting) (explaining that the “Court does not reach

the issue” of whether the communications in question qualified

as “‘intra-agency memorandums’ within the meaning of Exemption 5”).

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regarding water allocation from Oregon’s Klamath

River Basin. 532 U.S. at 5. The Department was consulting with the tribes during a planning project and

also representing one tribe in related litigation. Ibid.

When competing water-users FOIA’d 10 these documents, the Department withheld them under Exemption 5. Id. at 6. The Supreme Court held the exemption inapplicable, however. Id. at 14-16. While noting

some circuits had extended the exemption to “outside

consultants,” id. at 10, the Court observed that “in the

typical cases ... 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.” Id. at 11.

The tribes, by contrast, “necessarily communicate[d]

with the [Department] with their own, albeit entirely

legitimate, interests in mind.” Id. at 12. Moreover, the

tribes were “self-advocates at the expense of others

seeking benefits”—a share of the water—“inadequate

to satisfy everyone.” Ibid. The Court found this latter

point “dispositive”: the tribes sought “a decision by

[the Department] to support a claim … necessarily adverse to the interests of competitors.” Id. at 14; see

also, e.g., McKinley v. Bd. of Govs. of the Fed. Rsrv.

Sys., 647 F.3d 331, 337 (D.C. Cir. 2011) (identifying

10 “To have ‘FOIA’d’ information is to have submitted a request for the information under the [Freedom of Information]

Act.” Spenser Hsu, Uncovering Forensic Flaws: An Outside Perspective, 34 GA. ST. U.L. Rev. 1221, 1224 n.2 (2018); see also

Brian G. Brooks, Adventures in Cyber-Space: Computer Technology and the Arkansas Freedom of Information Act, 17 U. ARK.

LITTLE ROCK L.J. 417, 418 n.7 (1995) (noting FOIA “can also

be a verb referring to the act of requesting access” and so “one

may ‘FOIA’ the County Clerk, who will then state that he has

been ‘FOIA’d.’”).

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the tribes’ “necessarily adverse” position as the “dispositive point” of Klamath). Thus, the tribes were not

“enough like the agency’s own personnel to justify

calling their communications ‘intra-agency’” under

Exemption 5. Klamath, 532 U.S. at 12.

Klamath is distinguishable from the present case

on multiple grounds. Principally, Blue Hawaiian, Eurocopter, and Turbomeca are not making “claims”

that are “necessarily adverse” to those of the crash

victims’ families. Id. at 14; see also id. at 12 n.4 (“[T]he

intra-agency condition excludes, at the least, communications to or from an interested party seeking a Government benefit at the expense of other applicants.”)

(emphasis added). Rather, their employees are participating in an investigation that is a “fact-finding proceeding[] with no adverse parties,” one that is “not

conducted for the purpose of determining the rights

and liabilities of any person.” 49 C.F.R. § 831.4. Indeed, “[n]o part of a report of the [NTSB], related to

an accident or an investigation of an accident, may be

admitted into evidence or used in a civil action for

damages resulting from a matter mentioned in the report.” 49 U.S.C. § 1154(b); see also Curry v. Chevron,

USA, 779 F.2d 272, 274 (5th Cir. 1985) (expert’s probable-cause testimony could not rely on NTSB report

because “Congress has determined that these reports

shall not be used as evidence at trial”). 11 The

11 The NTSB has clarified that it “does not object to, and

there is no statutory bar to, admission in litigation of factual accident reports,” which the agency defines as “the report containing the results of the investigator’s investigation of the accident.”

49 C.F.R. § 835.2 (emphasis added); cf. ibid. (defining “board

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companies’ role in the agency investigation thus

stands in sharp contrast with Klamath, where the

tribes were lobbying the agency during a planning

project to obtain their desired share of a river basin’s

resources, in zero-sum competition with other water-users.

Furthermore, all parties to NTSB investigations—including companies like Eurocopter and Turbomeca appointed pursuant to an international convention—are under the control of the agency-appointed IIC. See 49 C.F.R. §§ 831.8; 831.11(a)(2); see

also ICAO Annex 13, § 5.25. For instance, the IIC supervises a party’s ability to disclose information obtained during an investigation, including within the

accident report” as the report “containing the [NTSB’s] determinations, including the probable cause of an accident,” which is

expressly prohibited from being admitted as evidence). As the

agency stressed at oral argument, “the final fact report that

NTSB puts out, with all of its supporting documentation, photographs, data … becomes one hundred percent public and is admissible in court.” Tr. of Oral Arg. at 39:10-39:40; see also Curry,

779 F.2d at 274 (distinguishing admissibility of “factual portions

of the report” from “conclusory statements in the … reports”).

This distinction (between factual material and the Board’s conclusions and recommendations) might affect the second part of

the Exemption 5 assessment—whether a document falls within

any “privileges available to Government agencies in civil litigation.” Sierra Club, 141 S. Ct. at 783; see also Klamath, 532 U.S.

at 8. Because we reverse only the district court’s conclusion regarding the first part of the Exemption 5 analysis, however, we

do not resolve this question. The district court is free to consider

the pertinence of this distinction, if any, on remand.

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party’s own organization. See 49 C.F.R. § 831.13(b). 12

And a party must sign a “Statement of Party Representatives,” emphasizing its role is only “to facilitate

the NTSB’s investigation and ultimate goal of advancing transportation safety, [and] not … to prepare for

litigation or pursue other self-interests.” Id.

§ 831.11(b). 13 The IIC may suspend or revoke party

status if a party fails to follow instructions or acts “in

a manner prejudicial or disruptive to the investigation.” Id. § 831.11(a)(2). Contrast this degree of

agency control over non-agency parties with the situation in Klamath, where nothing suggested that the

Department supervised the tribes, circumscribed

their role in the planning process, or limited their

ability to use information they obtained to further

their own claims. 14

12 The only exception in the 2016 regulation was for information “necessary for purposes of preventive or remedial action.”

Id. § 831.13(b).

13 Reinforcing this point, the regulations specify that “party

status” is reserved for organizations “who can provide suitable

qualified technical personnel actively to assist in the investigation.” Id. § 831.11(a)(1). A subsequent amendment to this section

has clarified that while the organization’s employees or products

will necessarily have been “involved in the accident,” “[t]o the

extent practicable,” the organization’s representative “may not

be a person who had direct involvement in the accident under

investigation.” 49 C.F.R. § 831.11(a)(1) (2017).

14 Cf. Klamath, 532 U.S. at 5-6 (explaining that the Indian

tribes had their “own lawyers” who “independently submitted

claims on [their] own behalf” in the pending water rights litigation, supplementing claims submitted by the United States); see

also id. at 13-14 (describing the “function” of the documents in

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The district court also placed particular weight on

the fact NTSB investigations do not usually (and did

not in this case) include representatives of victims’

families. The court’s concern reflects commendable

sympathy for these families, but it is ultimately misplaced. The NTSB does not invite victims’ representatives to participate in investigations because they

are typically not experts who can “provide suitable

qualified technical personnel to actively assist.” 49

C.F.R. § 831.11(a)(1); see also 82 Fed. Reg. 29,670,

29,681 (June 29, 2017) (explaining, in response to

comments advocating inclusion of family representatives, that “we disagree … that representatives from

family-member organizations … should be considered

technical experts as that term is understood in our investigations”). 15 The agency’s focus on technical expertise is logical given its mandate: it conducts

non-adversarial, forward-looking investigations intended to “ascertain measures that would best tend to

question as “quite apparently to support the tribal claims” and

further noting that the tribes were “pressing [their] own view of

[their] own interest in [their] communications”).

15 That is not to say the NTSB ignores “the needs of victims

and their families for information following an accident.” 82 Fed.

Reg. at 29,681. To the contrary, “[t]he agency has a division

whose responsibility is to ensure victims and family members

are aware of factual developments in investigations, the overall

status of the investigation, and other relevant information.”

Ibid; see National Transportation Safety Board, Information for

Families, Friends and Survivors, https://www.ntsb.gov/tda/family/Pages/default.aspx (last visited June 16, 2021) (explaining

“[t]he NTSB Transportation Disaster Assistance Division … provides information and assistance for family members and friends

of accident victims and survivors in the immediate aftermath of

an accident and in the months and years following”).

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prevent similar accidents or incidents in the future.”

49 C.F.R. § 831.4. In other words, the NTSB’s responsibility is to probe the technical causes of aircraft accidents in order to advise regulators and lawmakers;

it is not an adjudicatory entity designed to mete out

justice. The exclusion of victims’ family members from

investigations, then, has no bearing on whether outside entities with whom the agency does communicate

are “akin to … agency employee[s],” Stewart, 554 F.3d

at 1245, and thus fall within the consultant corollary.

We therefore respectfully disagree with the district court that, under Klamath, Blue Hawaiian, Eurocopter, and Turbomeca’s “self-interest” disqualifies

them as consultants for purposes of Exemption 5. To

be sure, Klamath contains language suggesting that

self-interest of some kind may prevent outside experts

from being deemed consultants. See, e.g., Klamath,

532 U.S. at 10-11 (while an outside consultant need

not “be devoid of a definite point of view,” it “typical[ly] ... does not represent an interest of its own, or

the interest of any other client, when it advises the

agency that hires it”). Whatever that threshold might

be, however, it has not been reached here. This case,

in contrast to Klamath, involves technical personnel

who participated in an agency fact-finding investigation—a process that was designed solely to issue

safety recommendations, that does not adjudicate liability, and that was controlled by the agency itself.

Moreover, the non-agency participants here are the

kind of experts typically accorded consultant status

under Exemption 5: “outside consultants” positioned

by their technical knowledge to inform an “agency’s

20a

deliberative process.” Pub. Citizen, 111 F.3d at 170. 16

Thus, given the overall context of the agency process,

the companies were “enough like the [NTSB’s] own

personnel to justify calling their communications ‘intra-agency’” under Exemption 5. Klamath, 532 U.S. at

12. As a result, they “should be able to give their judgments freely [to the agency] without fear of publicity.”

Wu, 460 F.2d at 1032 (citation omitted).

Of course, determining whether documents are

intra-agency is only the first step in applying Exemption 5. A document must also “fall within the ambit of

a privilege against discovery under judicial standards

that would govern litigation against the agency that

holds it.” Klamath, 532 U.S. at 8. Exemption 5 incorporates the various privileges which commonly shield

government documents (most commonly, but not always, predecisional and/or deliberative in character)

from disclosure during litigation. See Fish & Wildlife

Serv, 141 S. Ct. at 783; see, e.g., Jud. Watch, Inc. v.

Food & Drug Admin., 449 F.3d 141, 151 (D.C. Cir.

2006) (examining invocation of the deliberative process privilege in an Exemption 5 case and explaining

that the privilege “protects agency documents that

are both predecisional and deliberative”). Predecisional documents include those “‘generated before the

16 See also, e.g., Nat’l Inst. of Mil. Just. v. U.S. Dep’t of Def.,

512 F.3d 677, 679 (D.C. Cir. 2008) (consultant corollary shielded

recommendations of “non-government lawyers” including “former high ranking government officials” and “academics” about

the structure of a proposed military commission); Hoover, 611

F.2d at 1135, 1138 (corollary applied to appraisal by a “nongovernment appraiser with expertise in cave properties” obtained

by federal agency considering acquisition of such a property).

21a

adoption of an agency policy.’” Jud. Watch, 449 F.3d

at 151 (quoting Coastal States Gas Corp. v. Dep’t of

Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). Deliberative ones “‘reflect[] the give-and-take of the consultative process.’” Ibid.

The district court suggested some of the documents at issue here would “normally ... be exempt

from disclosure.” Others it did not address. Because

both facets must be satisfied for the exemption to apply, the district court should address this issue on remand. Of course, as the Supreme Court very recently

reiterated, the scope of Exemption 5 is not confined to

the boundaries of the deliberative process privilege.

Fish & Wildlife Serv, 141 S. Ct. at 783. The district

court is free on remand to consider any potentially

pertinent privilege and to assess the applicability of

any such privilege under the relevant test or standard

that normally governs its invocation. See, e.g., Kent

Corp. v. N.L.R.B., 530 F.2d 612, 618, 622-24 (5th Cir.

1976) (applying prevailing standard for attorney work

product privilege and finding documents shielded

from disclosure by Exemption 5).

IV.

In sum, the district court erred in concluding the

documents at issue were not “intra-agency” under Exemption 5. We therefore REVERSE the court’s judgment and REMAND for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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JAMES C. HO, Circuit Judge, dissenting:

This appeal concerns the proper interpretation of

the Freedom of Information Act (“FOIA”)—specifically, the scope of Exemption 5, which exempts certain “inter-agency or intra-agency” communications

from public disclosure. 5 U.S.C. § 552(b)(5).

If the terms “inter-agency” and “intra-agency” exclude anything, I would think they exclude government communications with employees of the very entity the government is trying to regulate.

No court has ever applied Exemption 5 to such

communications. I have found no such case. Nor has

the majority or the NTSB.

And for good reason. A communication between

the regulator and the regulated—between parties

with conflicting public versus private interests— is

the very opposite of an internal government communication. That makes it hard to square this case with

the plain text of Exemption 5. I have trouble seeing

how an exchange between a government agency and

the employee of a company with an interest in the outcome of that agency’s actions can possibly constitute

an “inter-agency or intra-agency” communication.

Indeed, the Supreme Court found precisely the

opposite in Dep’t of Interior v. Klamath Water Users

Protective Ass’n, 532 U.S. 1 (2001). There the Court

assumed, without deciding, that Exemption 5 would

apply to a bona fide government consultant—but

pointedly noted that a “consultant does not represent

an interest of its own.” Id. at 11. “Its only obligations

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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.” Id.

Communications involving an interested party,

by contrast, would not be subject to Exemption 5, according to Klamath. As the Court observed, “this fact

alone”—that is, the fact that the purported consultant

has its “own, albeit entirely legitimate, interests in

mind”—“distinguishes [such] communications from

the consultants’ examples recognized by several

Courts of Appeals.” Id. at 12 (emphasis added). 1

That same logic readily applies here. Eurocopter

and Turbomeca are private companies with a clear interest in the NTSB conducting its investigation in a

manner favorable to their private corporate interests.

They have an interest, for example, in steering the

NTSB away from making any statements or reaching

any conclusions that might support litigants who are

either currently adverse to the companies, or may

1 In a footnote, the Court acknowledged the existence of two

circuit rulings that “arguably extend beyond what we have characterized as the typical examples.” Id. at 12n.4 (citing Pub. Citizen, Inc. v. Dep’t of Justice, 111 F.3d 168 (D.C. Cir. 1997), and

Ryan v. Dep’t of Justice, 617 F.2d 781 (D.C. Cir. 1980). But as

the Court observed, those cases involved communications with

former Presidents and sitting U.S. Senators, respectively. Whatever one may think about characterizing correspondence with

former executive branch officials, or with officials in a different

branch of government, as “inter-agency” communications, I have

no difficulty concluding that those cases present categorically

different concerns from the private regulated parties in this case.

24a

someday be in the future—such as the families of the

crash victims represented by Jobe, the requestor here.

Tellingly, in the case cited by the NTSB as the

most supportive of its position, the court concluded

that the private party there had no interest separate

and apart from the agency, and was therefore subject

to Exemption 5. See McKinley v. Bd. of Governors of

Fed. Reserve, 647 F.3d 331, 337 (D.C. Cir. 2011) (quoting Klamath, 532 U.S. at 11) (“[T]he [Federal Reserve

Bank of New York] ‘[did] not represent an interest of

its own, or the interest of any other client, when it advise[d] the [Board]’ on the Bear Stearns loan.”). Not

surprisingly, the majority does not rely on McKinley.

The NTSB also points out, and the majority

agrees, that it is not technically a regulator—it

merely investigates and reports its findings to other

agencies. But as the NTSB itself acknowledges, the

whole purpose of its work is to help regulators like the

FAA determine how best to regulate companies to ensure public safety. No one disputes that the NTSB’s

findings can have a meaningful impact on the companies, and that the companies therefore have a genuine

interest in the content of the agency’s findings.

Finally, I do not question the sincerity of the

NTSB when it says it designates certain employees of

regulated companies to serve the public interest, in a

kind of secondment to the agency—and not to further

the private interest of their employers. I acknowledge

the various steps the agency takes to insulate itself

from being captured by industry interests as a result

of its investigatory methods. I agree with the majority

25a

that these party representatives may be bound by all

manner of regulatory strictures.

But that just proves my point: Those regulations

and restrictions are necessary precisely because these

employees remain on the payroll of the regulated companies and expect to return to their employers when

their secondments are completed. So they obviously

have an interest in the agency’s work. It would be

pure fiction for a government agency like the NTSB to

expect these designated private employees to ignore

their sense of loyalty and duty to their employers. To

the contrary, that’s why the agency needs regulations

to try to mitigate the impact of the employees’ contrary interests. But of course, those regulations don’t

actually eliminate those interests. Because they

can’t—nothing can change the fact that the employees

work for interested companies. And nothing in FOIA

directs courts to pretend otherwise.

What’s more, as the NTSB acknowledges, company experts are seconded to the agency, not to work

on safety issues generally, but to work on safety incidents specifically involving their companies. Indeed,

that’s precisely why the NTSB wants their expertise—they are chosen for the very reason that they

work for companies involved in the safety incidents

the agency is investigating.

To be sure, the NTSB may well have a strong argument that designated experts employed by interested companies like Eurocopter and Turbomeca

should be exempt from FOIA. The agency may be

right that such an exemption would help maximize

26a

the quantity and quality of the information available

to the agency about a safety incident like the tragic

helicopter crash at issue in this appeal.

But that is a policy decision for Congress to make,

not this court. Under the plain text of Exemption 5, I

see no basis for extending the consultant corollary to

the interested regulated entities who participate in an

NTSB investigation. Nor am I aware of any judicial

decision that would warrant such an extension here.

***

Open government is a founding principle of our

country. As James Madison, the father of our Constitution, once wrote, “a people who mean to be their own

Governors, must arm themselves with the power

which knowledge gives.” Letter from James Madison

to W.T. Barry (Aug. 4, 1822), in THE JAMES MADISON PAPERS AT THE LIBRARY OF CONGRESS,

1723-1859: Series 1, General Correspondence. 2

It was this spirit that gave rise to the adoption of

FOIA on July 4, 1966. See Pub. L. No. 89-487, 80 Stat.

250 (1966). FOIA offers every American one simple

promise: the right to know what your government is

doing. “[A]s Justice Brandeis said, sunlight is the best

disinfectant.” 162 CONG. REC. S1495 (daily ed. Mar.

15, 2016) (statement of Sen. Cornyn during debate

over 2016 amendments to FOIA).

2 This letter has been made available online by the Library

of Congress. See http://hdl.loc.gov/loc.mss/mjm.20_0155_0159.

27a

Accordingly, the Supreme Court has repeatedly

held that exemptions under FOIA are exclusive and

must be narrowly construed. See, e.g., Dep’t of the Air

Force v. Rose, 425 U.S. 352, 361 (1976); Vaughn v.

Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). “Consistent

with the Act’s goal of broad disclosure, these exemptions have been consistently given a narrow compass.”

U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,

151 (1989). See also FBI v. Abramson, 456 U.S. 615,

630 (1982) (“FOIA exemptions are to be narrowly construed.”).

Applying this established principle of interpretation to the plain meaning of “intra-agency” communications, I would hold that government communications with the employees of regulated parties fall

squarely outside of Exemption 5, and therefore subject to the disclosure mandates of FOIA. I agree with

the district court that Exemption 5 does not apply to

the documents at issue in this appeal and would

therefore affirm. The majority disagrees. Accordingly,

I very respectfully dissent.

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APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TONY B. JOBE

CIVIL ACTION

VERSUS

NO. 18-10547

NATIONAL

TRANSPORTATION

SAFETY BOARD

SECTION “A” (3)

ORDER AND REASONS

Before the Court is a Motion for Summary

Judgment (Rec. Doc. 28) filed by the Defendant

National Transportation Safety Board (“NTSB”) and

a Cross Motion for Summary Judgment (Rec.

Doc. 48) filed by the Plaintiff Tony Jobe. These two

motions, set for submission on October 16, 2019, are

before the Court on the briefs without oral argument.

I.

BACKGROUND

Jobe’s complaint seeks relief under the Freedom

of Information Act, 5 U.S.C. § 552 (“the FOIA”) and

the Administrative Procedure Act 5 U.S.C. § 706(1)

(“the APA”) and asks this Court to order the NTSB to

disclose the records it withheld that relate to the factfinding phase of its investigation of an EC130 B4 helicopter’s (“the Helicopter”) crash on the Island of Molokai, Hawaii, on November 10, 2011. (Rec. Doc. 48-1,

p. 6, Jobe’s Memorandum in Support). The crash

29a

killed the pilot, Nathan Cline, and his four passengers. Id. Plaintiff Jobe is an attorney who represents

at least one of the families of the victims to the helicopter crash. Id.

The Helicopter was manufactured by Airbus Helicopters, SAS, a French manufacturing company. Id.

Airbus Helicopters then sold the Helicopter to Nevada

Helicopter Leasing, LLC, who subsequently leased it

to Helicopter Consultants of Maui, d/b/a Blue Hawaiian Helicopters (“Blue Hawaiian”). Id. Blue Hawaiian

is a company that conducts aerial tours of the Hawaiian Islands, including Molokai. Id. 6-7.

During its investigation, the NTSB authorized

representatives from Airbus, Blue Hawaiian, and

Turbomecca (the French engine manufacturer) to participate as “parties” to its investigation. Id. at 7. As

parties to the investigation, the NTSB allowed Airbus, Blue Hawaiian, and Turbomecca to inspect the

crash site, take field notes, discuss possible accident

scenarios with other team members, and perform

other investigative activities. (Rec. Doc. 28-1, p. 5-6,

The NTSB’s Memorandum in Support). Further, pursuant to Annex 13, 1 the French Government designated accident investigators, reconstructionists, engineers, and scientists as parties to the NTSB’s

1 Under Annex 13 to the Convention on International Civil

Aviation, Aircraft Accident and Incident Investigation, the

States of the aircraft’s operator, designer, and manufacture have

the right to appoint an accredited representative to participate

in the investigation, as well as technical advisors to assist the

accredited representative. (Rec. Doc. 28-1, p. 3, the NTSB’s

Memorandum in Support).

30a

investigation. (Rec. Doc. 48-1, p. 7, Jobe’s Memorandum in Support). However, the NTSB never appointed representatives for the victims of the crash

nor did it allow the victims’ families to participate in

its investigation. Id.

After the NTSB completed its investigation, Jobe

submitted a request for information under 49 C.F.R.

Part 837 seeking 24 different types of documents.

(Rec. Doc. 28-5, p. 17, Jobe’s 837 Release Request). After reviewing this request, the NTSB informed Jobe

that his request lacked an affidavit that needed to

contain: the information sought, its relevance to the

proceeding, and a certification stating that the material was not available from another source. (Rec.

Doc. 28-1, p. 6, The NTSB’s Memorandum in Support). However, despite these deficiencies, the NTSB

decided to convert Jobe’s Part 837 request into a FOIA

request. Id. This decision was made in part by the fact

that the NTSB had coincidently received a separate

FOIA request from a different entity a few days before

Jobe’s Part 837 request. Id. This separate request

asked for “any and all records” relating to the Crash.

Id. Thus, the NTSB applied the same “any and all records” scope to both the unnamed entity’s request and

to Jobe’s request. Id. To complete these two requests,

the NTSB searched through over 13,000 pages but

chose to disclose only around 4,000 of these pages to

Jobe. 2 Id. Of the 8,000 pages withheld by the NTSB,

2 Interestingly, the Court notes that the NTSB produced

over 3,000 documents for the other FOIA request relating to the

unnamed entity. (Rec. Doc. 28-1, p. 6, the NTSB’s Memorandum

in Support). However, the NTSB claims that these documents

31a

2,349 of these pages were withheld pursuant to Exemption 5. Id. at 7.

In an attempt to receive more of the documents

that were withheld from him, Jobe thereafter submitted a second FOIA request in 2016 that specifically

asked for eleven different categories of documents

that only related to the NTSB’s “on-scene” phase of its

investigation. Id. at 8. These eleven categories were

as follows:

1) A copy of the Attendance Roster from the

Organizational Meeting of the parties to the

investigation;

2) A copy of the Outline of the Issues Utilized in the Organization Meeting of the parties to the investigation;

3) A copy of the On-Scene Organizational

Chart, including designation of the on-site

commander during the on-scene phase of the

investigation;

4) A copy of all State of Party Representatives to the NTSB forms signed by any representative, technical advisor, or agent of Airbus Helicopters, S.A.S. (the manufacturer of

the crash helicopter);

were “inadvertently” never sent to Jobe. Id. Because those documents are not related to the NTSB’s “on-scene” investigations,

the Court will not address that discrepancy. Id.

32a

5) A list of all persons given badges or other

authority for access to the crash site;

6) A copy of the field notes for each work

group for each day of the on-site phase of the

investigation;

7) A copy of all field notes approved by the

Investigator-in-Charge (“IIC”) for follow-up

work to remove wreckage from the crash site;

8) A copy of all IIC authorizations to remove

wreckage from Molokai between November 10, 2011 and January 1, 2012 including

but not limited to November 11, 2011; November 12, 2011; November 13, 2011, November

23, 2011; November 25, 2011; and December 22, 2011;

9) A copy of Attendance Rosters for all progress meetings;

10) A copy of all of the IIC’s notes for all progress meetings; and

11) A copy of all of the on-scene phase of the

investigation status reports prepared by the

IIC. 3

While the scope of Jobe’s first request was all encompassing and asked for “any and all records” that related to the accident, Jobe’s second request only

3 (Rec. Doc. 28-1, p. 8,

port).

the NTSB’s Memorandum in Sup-

33a

sought documents that related to the “on-scene”

phase of the NTSB’s investigation. (Rec. Doc. 28-3,

p. 16-17, April 26, 2017 Correspondence with Jobe).

Accordingly, the NTSB answered his second request

by informing him that it had previously disclosed to

him all the releasable documents through his first request. 4 Id.

Jobe was again displeased with the NTSB’s response to his request, so the NTSB, in an attempt to

prevent litigation, offered to re-review the 2,349 records that it previously withheld from him under Exemption 5 in his first request. (Rec. Doc. 53-1, p. 3, the

NTSB’s Reply). However, the NTSB also informed

Jobe that it would only produce the records that were

responsive to the eleven categories that Jobe listed in

his second FOIA request (i.e., only the records that

related to the NTSB’s on-scene investigations). (Rec.

Doc. 28-5, p. 38, January 31, 2018 Correspondence

with Jobe) (“In several telephone calls, you and I clarified the scope of your request, and as a result, we

broadened the scope of your request to include any

records related to the on-scene phase of the investigation.”). Ultimately, out of the 2,349 records that the

NTSB re-reviewed, it ultimately only released 159 of

these documents to Jobe. (Rec. Doc. 28-5, p. 8-13,

Mathew McKenzie’s Declaration). The NTSB claimed

that the remaining documents were either properly

exempt from disclosure under Exemption 5 or were

4 The Court notes that the NTSB disclosed to Jobe an additional 333 of 393 documents to Jobe which originated from an

outside source. (Rec. Doc. 28-3, p. 16-17, April 26, 2017 Correspondence with Jobe). However, those documents are not the

subject of this case.

34a

non-responsive to the 11 categories Jobe listed in his

second FOIA request. Id.

After the NTSB completed its re-reviewal process,

Jobe subsequently filed this suit and specifically requested the following categories of documents:

(a) All field notes from the investigation

which contain relevant factual information

developed by the investigators during the onscene phase of the investigation;

(b) All notes from on-scene investigation

progress meetings, required to be attended by

all investigation party coordinators, that address investigative issues that require coordination, changes to the investigative plan,

need for additional investigative support, or

an evaluation of whether urgent safety recommendations are needed; and

(c) All status reports generated by the

NTSB’s Investigator-In-Charge during the

on-scene phase of the investigation. 5

Thus, through his complaint, Jobe again restricted

the scope to only the documents relating from the “onscene” phase of the NTSB’s investigation. This is in

stark contrast to the breadth of documents he originally asked for in his first FOIA request (i.e., ““any

and all records” related to the crash) and the documents he seemingly requested in his Memorandum in

Support of Summary Judgment. (Rec. Doc. 56, p. 8,

5 (Rec. Doc. 1, p. 3, Jobe’s Complaint) (emphasis added).

35a

Jobe’s Response) (“Given the NTSB’s December 29,

2017 agreement relative to [Jobe’s second FOIA request], Plaintiff seeks the NTSB’s release of all of the

2,349 pages of records arising out of [the Crash] and

withheld by the NTSB on a claim of FOIA Exemption 5.”). Accordingly, based on the limited scope of

this case, the NTSB filed a Vaughn index which only

listed the 215 documents that were withheld and were

responsive to the 11 categories listed in Jobe’s 2016

FOIA request. (Rec. Doc. 28, p. 1-4, Index of Withheld

Records).

In this motion for summary judgment, Jobe requests three specific things. First, Jobe seeks the

NTSB to release all 2,349 records relating to the

Crash that it withheld under Exemption 5, instead of

just the 215 items it found responsive to Jobe’s 2016

FOIA request. (Rec. Doc. 56-1, p. 8, Jobe’s Response).

Second, if the Court finds that the Vaughn index

should be limited to only 215 documents, Jobe requests that the NTSB conduct a segregability analysis and release all 215 documents with proper redactions. Id. at 10. Third, Jobe seeks the NTSB to provide

a more detailed Vaughn index that sufficiently describes the applicability of Exemption 5 to each withheld record. Id. at 11.

Conversely, the NTSB asks this Court to dismiss

this case by granting summary judgment in its favor.

The following will discuss the merits of both side’s

positions.

36a

II. STANDARD OF REVIEW

The FOIA requires a federal agency, upon request, to disclose records in its possession, unless the

requested documents are clearly exempt from disclosure by statute. 5 U.S.C. § 552(a)-(b); NLRB v. Sears,

Roebuck & Co., 421 U.S. 132, 136 (1975). The exemptions are exclusive and should be narrowly construed.

Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976);

Vaughn v. Rosen, 484 F.2d 820, 823 (D.C.Cir.1973).

Furthermore, there is a strong presumption in favor

of disclosure. U.S. Dep’t of State v. Ray, 502 U.S. 164,

173 (citing Rose, 425 U.S. at 361). Accordingly, the

government bears the burden of proving that the documents withheld fall within an enumerated exemption. U.S. Dep’t of Justice v. Tax Analysts, 492 U.S.

136, 141 n. 2 (1989); see also 5 U.S.C. § 552(a)(4)(B)

(“the burden is on the agency to sustain its action”).

The agency may satisfy its burden of proof through

the submission of affidavits that identify the documents at issue and explain why they fall under the

claimed exemption. Cooper Cameron Corp. v. U.S.

Dep’t of Labor, Occupational Safety & Health Admin.,

280 F.3d 539, 543 (5th Cir. 2002). These affidavits

must be clear, specific, and reasonably detailed while

describing the withheld information in a factual and

nonconclusory manner. Id. Lastly, “FOIA cases typically are resolved on a motion for summary judgment.” Ortiz v. U.S. Dep’t of Justice, 67 F. Supp. 3d

109, 116 (D.D.C. 2014); see Defs. of Wildlife v. U.S.

Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009).

37a

III. DISCUSSION

A. Scope of the Vaughn Index Provided

by the NTSB

Although Jobe demands a Vaughn index of the

2,349 records that the NTSB withheld under Exemption 5, the NTSB submitted an index of only the 215

documents it deemed responsive to Jobe’s 2016 FOIA

request. (Rec. Doc. 28-6). The Court finds this limitation of scope to be appropriate. As the Magistrate

Judge noted when ruling on Jobe’s Motion to Compel

the Vaughn index, “[a]t issue in the instant dispute is

Jobe’s November 1, 2016 request pursuant to the

FOIA to the National Transportation Safety Board

(“NTSB” or “defendant”) for specific documents related to the crash investigation conducted by the

agency.” (Rec. Doc. 25, p. 1, Magistrate’s Decision on

Jobe’s Motion to Compel). Accordingly, this case focuses on Jobe’s second FOIA request which was limited in scope to only “on-scene” phase of the NTSB’s

investigation. Conversely, this suit does not concern

Jobe’s 2014 FOIA request which effectively asked for

“any and all records” related to the Crash. Thus, the

Court declines to expand the scope of the Vaughn index to include the 2,349 originally withheld documents.

B. Overview of Exemption 5 Law

Next, the FOIA requires federal agencies to disclose records upon request unless the records fall

within one or more enumerated exemptions. Dep’t of

Interior v. Klamath Water Users Protective Ass’n, 532

U.S. 1, 7 (2001); see 5 U.S.C. § 552. The exemptions

38a

are narrowly construed so as not to “‘obscure the basic

policy that disclosure, not secrecy, is the dominant objective of the Act.’” Klamath, 532 U.S. at 8 (quoting

Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)).

The relevant exemption here is Exemption 5, which

allows an agency to withhold disclosure if the document meets two requirements: (1) it is an “interagency or intra-agency memorandum” that (2) “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). Thus, if a document is not an “agency document,” an agency may not withhold it even if it reflects the agency’s deliberative process. Similarly, an

agency must disclose documents that would otherwise

be protected under Exemption 5 if that agency waives

that right by voluntarily sharing the document with

third parties. Mead Data Central, Inc. v. United

States Dep’t of the Air Force, 566 F.2d 242, 253

(D.C.Cir.1977).

i.

Requirement One - Inter-Agency or

Intra-Agency

First, to receive protection under Exemption 5,

the record in question must be an inter-agency or intra-agency document. This type of protection is normally used to cover typical communications between

agency employees. However, the Fifth Circuit has extended this protection to certain communications between agency employees and outside consultants.

Hoover v. U.S. Dep’t of the Interior, 611 F.2d 1132,

1138 (5th Cir. 1980). As the D.C. Court of Appeals explained in Public Citizen v. Department of Justice:

“records of communications between an agency and

39a

outside consultants qualify as intra-agency for [the]

purposes of Exemption 5 if they have been created for

the purpose of aiding the agency’s deliberative process.” 111 F.3d 168, 170 (D.C. Cir. 1997) (citations and

internal quotation marks omitted); see also Ryan v.

DOJ, 617 F.2d 781, 789–90 (D.C. Cir. 1981) (“When

an agency record is submitted by outside consultants

as part of the deliberative process, and it was solicited

by the agency, we find it entirely reasonable to deem

the resulting document to be an ‘intra-agency’ memorandum.”). Under what has come to be known as the

“consultant corollary,” it is irrelevant whether the author of the document is a regular agency employee or

a temporary consultant. Public Citizen, 111 F.3d at

170.

ii. Requirement Two - Deliberative Process Privilege

The second requirement for receiving protection

under Exemption 5 is that the document must not be

normally “discoverable by a private party in the

course of civil litigation with the agency.” Jordan v.

Department of Justice, 591 F.2d 753, 772

(D.C.Cir.1978). Among the privileges that fall within

this classification is the deliberative process privilege.

Id. This privilege shields from disclosure “all papers

which reflect the agency’s group thinking in the process of working out its policy and determining what

its law shall be.” Arthur Andersen & Co. v. I.R.S., 679

F.2d 254, 257 (D.C.Cir.1982) (citation and internal

quotation marks omitted). To determine whether a

document is covered by this privilege, courts must

look at two factors. First, courts ask whether the

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document is “predecisional,” that is, whether the document was prepared in order to assist the decisionmaker in making a decision. Coastal States Gas

Corp. v. Dep’t of Energy, 617 F.2d 854, 866

(D.C.Cir.1980). These types of documents include

things like proposals, draft documents, and other subjective documents that reflect the writer’s opinions rather than an agency policy. Id. “To ascertain whether

the documents at issue are pre-decisional, the court

must first be able to pinpoint an agency decision or

policy to which these documents contributed.” Morley

v. CIA, 508 F.3d 1108, 1127 (D.C. Cir. 2007) (quoting

Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir.1983)).

The second factor of the deliberative process privilege requires the court to determine if the document

is “deliberative.” That is, a court must decide whether

the document “reflects the give-and-take of the consultative process.” Judicial Watch, Inc. v. Food &

Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006)

(quoting Coastal States, 617 F.2d at 866). Further,

the document must be such that its public disclosure

would not “expose an agency’s decisionmaking process in such a way as to discourage candid discussion

within the agency and thereby undermine the

agency’s ability to perform its functions.” Dudman

Commc’ns Corp. v. Dep’t of the Air Force, 815 F.2d

1565, 1568 (D.C. Cir. 1987). The burden is on the

agency to “establish[] what deliberative process is involved, and the role played by the documents in issue

in the course of that process.” Coastal States, 617 F.2d

at 868. Conclusory assertions that merely parrot the

language of the exemption do not suffice. Senate of the

Commonwealth of Puerto Rico on Behalf of Judiciary

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Comm. v. U.S. Dep’t of Justice, 823 F.2d 574, 585

(D.C. Cir. 1987) (citing Mead Data Cent., Inc. v. Dep’t

of the Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977)

(noting that the government must show “by specific

and detailed proof that disclosure would defeat, rather than further, the purposes of the FOIA.”)).

C. Applying Exemption 5 to this Case

i.

Documents Prepared by Representatives and the Fact Witness

In this case, the Helicopter’s manufacturers, Eurocopter and Turbomeca, prepared Documents 175179 and Documents 180-206, but the NTSB claimed

that Exemption 5 applied to these documents by saying, “[t]he advice provided to the NTSB by [Eurocopter and Turbomeca] are intra-agency communications

covered by the consultant corollary to Exemption 5.”

(Rec. Doc. 28-1, p. 23, NTSB’s Memorandum in Support). More specifically, “[t]he NTSB sought the outside advice, the advice was not adverse to government

interests, and in providing their expertise, the consultants effectively functioned as agency employees.”

Id. Further, the NTSB attempted to refute the notion

that Eurocopter and Turbomeca were “disinterested”

parties by saying, “[f]irst, NTSB investigations are

fact-finding proceedings that do not assign liability or

adjudicate rights, with no adverse parties.” Id. at 24.

“Second, legal professionals, claimant or insurer representatives, and to the extent practicable, individuals directly involved in an accident are not permitted

to be party representatives.” Id. “Third, party participation is subject to the [Investigator in Charge’s]

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control and direction, and to the terms of the ‘Statement of Party Representative to NTSB Investigation’

to ensure that parties are serving the needs of the

NTSB investigation, and not any litigation purpose.”

Id.

Here, the Court finds the NTSB’s arguments unpersuasive. As participants in the NTSB’s investigation, Eurocopter and Turbomeca demonstrate the

epitome of “self-interested” individuals. Although

these entities were there to help the NTSB’s investigation, they also were undoubtedly there to collect information to prepare for inevitable future litigation.

Further, the NTSB relies on Electronic Privacy Information Center (EPIC) v. DHS, 892 F. Supp. 2d 28, 4546 (D.D.C. 2012) which appears to misread Klamath

as requiring actual adversity between the consultant

and the agency before the communications lose protection. However, Klamath does not require adversity, and the Court finds EPIC’s reasoning unpersuasive. Klamath, 532 U.S. at 12 (“The Tribes, on the contrary, necessarily communicate with the Bureau with

their own, albeit entirely legitimate interests in mind.

While this fact alone distinguishes tribal communications from the consultants’ examples … the distinction is even sharper, in that the Tribes are self-advocates at the expense of others seeking benefits inadequate to satisfy everyone.”) (emphasis added).

Instead, Klamath requires the agency’s consultant to be disinterested and not “represent[ing] an interest of its own, or the interest of any other client,

when it advises the agency that hires it.” Klamath,

532 U.S. at 12, n.4. An agency’s consultant has an

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obligation to be obedient “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.” Id. Thus, as the United Supreme

Court has noted, “the intra-agency condition excludes, at the least, communications to or from an interested party seeking a Government benefit at the

expense of other applicants.” Id.

Both Eurocopter and Turbomeca received a significant benefit here. As Jobe stated in his Memorandum

in Support, “throughout the NTSB’s entire investigative process, the manufacturer and operator defendants in civil litigation were welcome to the entire government investigation file and were given editorial license to the NTSB’s draft and official ‘factual’ reports

and draft final reports of the agency’s determination

of the probable cause(s) of the crash.” (Rec. Doc. 48-1,

p. 7, Jobe’s Memorandum in Support). “The accident

victims and their families were not.” Id. Thus, the

Court finds that Eurocopter and Turbomeca were not

“consultants” under the “consultant corollary.” Accordingly, Documents 175-179 from Eurocopter and

Documents 180-206 from Turbomeca are not “agency

documents” and must be disclosed to Jobe. (Rec.

Doc. 28-6, p. 3, The NTSB’s Index of Withheld Records).

Under the same reasoning, the NTSB must also

disclose the email sent by the fact witness pilot to the

NTSB. Id. This email was not prepared by the agency

nor did the NTSB hire this fact witness to serve as an

agency consultant. Therefore, the Court also finds

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that the NTSB must release Documents 165-166 from

the fact witness pilot to Jobe.

ii. Documents Prepared by NTSB and

Sent Only to NTSB Staff

Next, after conducting an in camera inspection of

Documents 62-87, 88-92, 93, 94-104, 105-119, 120122, 167-174, and 207-215, the Court confirmed that

these documents were all internally produced by

NTSB personnel and were only shared with NTSB

staff. Accordingly, these documents satisfy the Deliberative Process Privilege’s two criteria. Coastal States

Gas Corp., 617 F.2d at 866. First, these documents

are “predecisional” because they were drafted before

the NTSB made its final conclusions on the crash.

(Rec. Doc. 28-6, The NTSB’s Index of Withheld Records). Second, these documents are “deliberative” because the disclosure of these documents would unjustly expose the NTSB’s decision-making process. Id.

Thus, the Court finds that the NTSB properly withheld these documents from disclosure under Exemption 5.

iii. Documents Prepared by NTSB and

Sent to Outside Representatives

Lastly, Documents 1-61, 123-124, and 125-156

were prepared by NTSB personnel but then were distributed to other NTSB personnel and outside representatives, such as the plane’s manufacturers and the

plane’s leasing company. (Rec. Doc. 28-6, The NTSB’s

Index of Withheld Records). Normally, these documents would be exempt for disclosure because they

were both “predecisional” and “deliberative.” Coastal

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States Gas Corp., 617 F.2d at 866. However, for the

purposes of the inter-agency requirement under Exemption 5, the Supreme Court has noted that the

term “agency” means “each authority of the Government of the United States, § 551(1), 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 Water Users, 532 U.S. at 9 (internal quotations omitted). In general, this definition establishes that communications between agencies and

outside parties are not protected under the deliberative process privilege. Ctr. for Int’l Envtl. Law v. Office of U.S. Trade Representative, 237 F. Supp. 2d 17,

25 (D.D.C. 2002). As seen through the analysis above,

entities like the plane’s manufacturers and the

plane’s leasing company are considered outside parties because they do not constitute “disinterested”

consultants under the “consultant corollary.” Thus, by

sharing its agency documents with non-agency entities (i.e., the plane’s manufacturers and the plane’s

leasing company), the NTSB waived the deliberative

process privilege under Exemption 5. Accordingly, the

Court concludes that the NTSB must disclose Documents 1-61, 123-124, and 125-156 to Jobe.

D. Segregability Analysis

The FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after [the] deletion of the

portions which are exempt.” 5 U.S.C. § 552(b). Therefore, once an agency identifies a document that it

46a

believes qualifies for a FOIA exemption, “it must undertake a segregability analysis, in which it separates

the exempt from the non-exempt portions of the document, and produce[] the relevant non-exempt information.” Edmonds Inst. v. U.S. Dep’t of the Interior,

383 F. Supp. 2d 105, 108 (D.D.C. 2005) (citing

Vaughn, 484 F.2d at 825). To prevail in a motion for

summary judgment, the agency must demonstrate

that it has satisfied its segregability analysis obligation, which it may do through its Vaughn index in conjunction with an agency declaration. See e.g., Peter S.

Herrick’s Customs & Int’l Trade Newsletter v. U.S.

Customs & Border Protection, No. 04-377, 2005 WL

3274073, at *3 (D.D.C. Sept. 22, 2005). Under Fifth

Circuit law, “[i]t is error for a district court to simply

approve the withholding of an entire document without entering a finding on segregability, or the lack

thereof.” Batton v. Evers, 598 F.3d 169, 178 (5th Cir.

2010) (citing Schiller v. NLRB, 964 F.2d 1205, 1210

(D.C. Cir. 1992)).

Here, the Court finds that the Vaughn index submitted by the NTSB, combined with the NTSB’s declaration that no further segregation is possible (Rec.

Doc. 28-3, p. 6, Declaration by Melba Moye), demonstrates that withheld Documents 62-122, 157-164,

and 207-215 are not segregable. See Peter S. Herrick’s

Customs & Int’l Trade Newsletter v. U.S. Customs &

Border Prot., No. CIV.A. 04-00377 JDB, 2005 WL

3274073, at *3 (D.D.C. Sept. 22, 2005) (“[T]he combination of a comprehensive, reasonably-detailed

Vaughn index and an affidavit confirming that a lineby-line review of each document determined that no

redacted information could be disclosed will satisfy

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the agency’s obligation.”). Further, this determination

was bolstered by the Court’s in camera review of the

corresponding documents. Thus, Jobe’s claim relating

to segregability of the withheld documents has no

merit.

D. Adequacy of the Vaughn Index Descriptions

Jobe lastly requested this Court to order “the

NTSB to provide a full and complete Vaughn index,

sufficient for this Court to determine the applicability

of Exemption 5 to each of the records withheld.” However, the Court now finds this argument moot after it

completed an in camera inspection of all 215 documents on the Vaughn index. (Rec. Doc. 28-6).

Accordingly;

IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 28) filed by the NTSB

and the Cross Motion for Summary Judgment

(Rec. Doc. 48) filed by Jobe are GRANTED IN

PART AND DENIED IN PART as follows: the

NTSB must release to Jobe Documents 1-61, 123-156,

and 165-206 on the Vaughn index submitted by the

NTSB. (Rec. Doc. 28-6). Jobe’s request for the NTSB

to produce Documents 62-122, 157-164, and 207-215

is denied.

November 18, 2019

/s/ Jay C. Zainey

JUDGE JAY C. ZAINEY

UNITED STATES

DISTRICT JUDGE

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APPENDIX C

INDEX OF WITHHELD RECORDS

Tony B. Jobe v. NTSB, Case No. 2:18-cv-10547JCZ-DEK (E.D. La.)

NTSB accident ID WPR12MA034

FOIA request 2017-00066

Accident date: November 10, 2011

Page(s)

Description

001-061

Emails, dated December 14,

2011 and November 29, 2012,

from Dennis Hogenson, NTSB

Investigator in Charge (IIC),

to NTSB employees transmitting for review a draft Operations/Witness Group Chairman’s Factual Report and a

draft Airworthiness Field

Notes report. Group Field

Notes are circulated among

NTSB employees and party

representatives for input, and

signatures are requested to

acknowledge consensus about

the preliminary information

gathered. Field Notes represent a preliminary

consensus about the circumstances surrounding an

Exemption

5

Deliberative

process

privilege

49a

Page(s)

062-087

088-092

093

Description

accident. They help determine

what additional steps to take

and serve as the starting

point for developing factual

reports that are released in

the public docket. Thus,

though mostly factual in nature, they are an important

part of the NTSB’s deliberative process.

A draft Operations/Witness

Group Chairman’s Factual

Report, dated December 19,

2012.

Email, dated January 4, 2013,

from Dennis Hogenson, NTSB

IIC, to NTSB investigators regarding the use of wreckage

diagram in factual reports, attaching the diagram. Final attachment produced, but a

draft version of the wreckage

diagram withheld.

Email, dated November 10,

2011, from Joshua Cawthra,

NTSB Aviation Accident Investigator, to Dennis Hogenson, NTSB IIC, transmitting draft first paragraph of

accident summary.

Exemption

5

Deliberative

process

privilege

5

Deliberative

process

privilege

5

Deliberative

process

privilege

50a

Page(s)

094-104

105-119

120-122

123-124

Description

Exemption

Emails, dated November 125

19, 2011, July 19, 2012, and

DeliberAugust 24-27, 2012, within

ative

NTSB regarding the status of process

accident investigation and ini- privitial facts about the accident,

lege

citing a task list Excel spreadsheet (no attachment), and

discussing the next steps in

the investigation.

Emails, dated January 23-26, 5

2012, February 1-2, 2012,

DeliberMarch 2, and August 28 (no

ative

years given) within NTSB re- process

garding a work planning

privimeeting for the accident, inlege

cluding the meeting agenda.

Emails, dated November 19,

5

2011, within NTSB providing Deliberan update on the accident inative

vestigation, including comprocess

ments on factual information

privifound to date.

lege

Emails, dated November 29,

5

2011, from NTSB to FAA and Deliberparty representative, Blue

ative

Hawaiian Helicopters, seekprocess

ing comments on draft field

priviinterview notes, and providlege

ing FAA’s comments on the

notes.

51a

Page(s)

125-156

Description

Exemption

Emails, dated November 14

5

and 29, 2011, among NTSB,

Deliberaccredited representative,

ative

France’s Bureau of Enquiry

process

and Analysis for Civil Aviaprivition Safety (BEA-France), and lege

the Federal Aviation Administration (FAA) transmitting

for review an Airworthiness

Field Notes report and an Operations/Witness Group

Chairman’s Factual Report.

Group Field Notes are circulated among party representatives for input, and signatures

are requested to acknowledge

consensus about the preliminary information gathered.

Field Notes represent a preliminary consensus about the

circumstances surrounding an

accident. They help determine

what additional steps to take,

and serve as the starting

point for developing factual

reports that are released in

the public docket. Thus,

though mostly factual in nature, they are an important

part of the NTSB’s deliberative process.

52a

Page(s)

Description

157-166

Emails, dated November 21,

2011, December 15, 2011, and

January 12, 2012, within

NTSB and from a pilot flying

in the area of the accident to

the NTSB transmitting pilot

interview notes. The interview notes were used in developing the Operations/Witness

Group Chairman’s Factual

Report.

Undated draft witness interview notes. The interview

notes were used in developing

the Operations/Witness Group

Chairman’s Factual Report.

167-174

175-179

Undated draft Field Notes

from technical advisor, Eurocopter, regarding the accident and accident aircraft.

180-206

Undated On-Site Examination Report from technical advisor, Turbomeca, summarizing examination of accident

site and the aircraft.

207-215

Draft NTSB Meteorology

Group Field Notes report,

dated November 19, 2011,

Exemption

5

Deliberative

process

privilege

5

Deliberative

process

privilege

5

Deliberative

process

privilege

5

Deliberative

process

privilege

5

Deliberative

53a

Page(s)

Description

drafted by Michael Richards,

NTSB Meteorologist.

Exemption

process

privilege

54a

APPENDIX D

5 U.S.C. § 552

Public information; agency rules, opinions, orders,

records, and proceedings

***

(b) This section does not apply to matters that are-(1)(A) specifically authorized under criteria established by an Executive order to be kept secret

in the interest of national defense or foreign policy

and (B) are in fact properly classified pursuant to

such Executive order;

(2) related solely to the internal personnel rules

and practices of an agency;

(3) specifically exempted from disclosure by statute (other than section 552b of this title), if that

statute-(A)(i) requires that the matters be withheld

from the public in such a manner as to leave

no discretion on the issue; or

(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and

(B) if enacted after the date of enactment of

the OPEN FOIA Act of 2009, specifically cites

to this paragraph.

55a

(4) trade secrets and commercial or financial information obtained from a person and privileged

or confidential;

(5) 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 to records created

25 years or more before the date on which the records were requested;

(6) personnel and medical files and similar files

the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy;

(7) records or information compiled for law enforcement purposes, but only to the extent that

the production of such law enforcement records or

information (A) could reasonably be expected to

interfere

with

enforcement

proceedings,

(B) would deprive a person of a right to a fair trial

or an impartial adjudication, (C) could reasonably

be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be

expected to disclose the identity of a confidential

source, including a State, local, or foreign agency

or authority or any private institution which furnished information on a confidential basis, and, in

the case of a record or information compiled by

criminal law enforcement authority in the course

of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a

56a

confidential source, (E) would disclose techniques

and procedures for law enforcement investigations or prosecutions, or would disclose guidelines

for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or

(F) could reasonably be expected to endanger the

life or physical safety of any individual;

(8) 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;

or

(9) geological and geophysical information and

data, including maps, concerning wells.

Any reasonably segregable portion of a record shall be

provided to any person requesting such record after

deletion of the portions which are exempt under this

subsection. The amount of information deleted, and

the exemption under which the deletion is made, shall

be indicated on the released portion of the record, unless including that indication would harm an interest

protected by the exemption in this subsection under

which the deletion is made. If technically feasible, the

amount of the information deleted, and the exemption

under which the deletion is made, shall be indicated

at the place in the record where such deletion is made.

***