Amicus Curiae Brief — Tony B. Jobe, Esquire, Petitioner v. National Transportation Safety Board

No. 21-469

In the Supreme Court of the United States

________________

TONY B. JOBE, ESQUIRE,

Petitioner,

v.

NATIONAL TRANSPORTATION SAFETY BOARD,

Respondent.

________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

________________

BRIEF OF THE CATO INSTITUTE AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

________________

Ilya Shapiro

William M. Yeatman*

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

*Admitted to the D.C. Bar under

D.C. App. R. 46-A. Supervised by

D.C. Bar member.

October 28, 2021

J. Carl Cecere

Counsel of Record

CECERE PC

6035 McCommas Blvd.

Dallas, TX 75206

(469) 600-9455

ccecere@cecerepc.com

i

QUESTIONS PRESENTED

1. Whether the Fifth Circuit erred by holding that

“intra-agency memorandums or letters” in FOIA’s Exemption 5 encompasses documents prepared by a private, outside consultant.

2. Whether the Fifth Circuit, in a sharply divided

decision, erred in holding that any “consultant corollary” in FOIA Exemption 5 encompasses communications between an agency and (1) employees of a private, regulated company with an economic interest in

the agency’s actions; or (2) the representative of a foreign government.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED........................................ i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICUS CURIAE............................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................ 1

ARGUMENT: THE COURT SHOULD TAKE

THIS

CASE

TO

RESTORE

FOIA’S

ESSENTIAL ROLE IN ENSURING THAT

FEDERAL

AGENCIES

AND

THOSE

CONSULTING

WITH

THEM

REMAIN

ACCOUNTABLE

TO

THE

AMERICAN

PEOPLE ................................................................... 5

A. Federal Agencies Have Never Been More

Powerful, and Less Accountable—

Especially When They Work with, and

through, Private Consultants ...................... 5

B. FOIA Plays an Essential Role in

Providing Oversight and Accountability

for Federal Agencies and Their Armies of

Private Consultants ................................... 10

C. The Atextual “Consultant Corollary”

Cripples Oversight and Accountability

for Agencies’ Private Consultants ............. 12

CONCLUSION ......................................................... 19

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837 (1984) ........................... 8

City of Arlington, Tex. v. FCC,

569 U.S. 290 (2013).................................................. 6

Dep’t of Commerce v. New York,

139 S. Ct. 2551 (2019)............................................ 15

Dep’t of Interior v. Klamath Water Users

Protective Ass’n, 532 U.S. 1 (2001) .............. 4, 11, 17

Dep’t of Justice v. Reporters Comm. for

Freedom of Press, 489 U.S. 749 (1989) .................. 11

Dep’t of Justice v. Tax Analysts,

492 U.S. 136 (1989)................................................ 13

Dep’t of the Air Force v. Rose,

425 U.S. 352 (1976)................................................ 11

FBI v. Abramson, 456 U.S. 615 (1982) .................... 11

Food Mktg. Inst. v. Argus Leader Media,

139 S. Ct. 2356 (2019).............................................. 5

Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd., 561 U.S. 477 (2010) ................. 2, 6, 9

Gundy v. United States,

139 S. Ct. 2116 (2019).............................................. 7

Milner v. Dep’t of the Navy,

562 U.S. 562 (2011)............................................ 5, 11

NLRB v. Robbins Tire & Rubber Co.,

437 U.S. 214 (1978).......................................... 10, 11

iv

Oklahoma v. EPA,

723 F.3d 1201 (10th Cir. 2013)................................ 9

Soucie v. David,

448 F.2d 1067 (D.C. Cir. 1971) ................................ 5

Wu v. Nat’l Endowment for Humanities,

460 F.2d 1031 (5th Cir. 1972)................................ 16

Statutes

5 U.S.C. § 551(1) ....................................................... 12

5 U.S.C. § 552(b)(4)................................................... 12

5 U.S.C. § 552(b)(5)..................................................... 3

5 U.S.C. § 552(b)(8)................................................... 12

5 U.S.C. § 552(f)(1) ................................................... 12

Clean Air Act, 42 U.S.C. § 110 ................................... 9

Freedom of Information Act, Pub. L. 89-554,

80 Stat. 383 (1966) ................................................... 2

Pub. L. 104-231 (1996) ............................................. 18

Pub. L. 107-306 (2002) ............................................. 18

Pub. L. 110-175 (2007) ............................................. 18

Pub. L. 111-83 (2009) ............................................... 18

Pub. L. 114-185 (2016) ............................................. 18

Pub. L. 93-502 (1974) ............................................... 18

Pub. L. 94-409 (1976) ............................................... 18

Pub. L. 95-454 (1978) ............................................... 18

Pub. L. 98-620 (1984) ............................................... 18

Pub. L. 99-570 (1986) ............................................... 18

v

Regulations

48 C.F.R. § 9.406-2 ..................................................... 9

48 C.F.R. § 9.407-2 ..................................................... 9

Other Authorities

Br. of Amici Curiae Freedom of Information

Act and First Amendment Scholars in

Support of Respondent, Food Mktg. Inst. v.

Argus Leader Media,

139 S. Ct. 2356 (2019) (No. 18-481) ...................... 18

Department of Justice, Memorandum from

Quin Shea to Bob Saloshin, Exemption 5,

“Chilling Effect” and Openness in

Government (Nov. 7, 1977).................................... 17

Elena Kagan, Presidential Administration,

114 Harv. L. Rev. 2245, 2332 (2001) ........... 6, 10, 11

Federalist No. 51 (James Madison)

(Clinton Rossiter ed., 1961) ..................................... 2

Government by Contract: Outsourcing and

American Democracy (Jody Freeman &

Martha Minow eds., 2009) ....................................... 8

H.R. Rep. No. 89-813 (1965) ..................................... 10

H.R. Rep. No. 114- 391 (2016) .................................. 18

Harold L. Cross, The People’s Right to Know

(1977) ...................................................................... 11

Hearing on “Examining the Federal

Regulatory System to Improve

Accountability, Transparency and

Integrity” before the Senate Comm. on the

Judiciary, 114th Cong., Sess. 1 (2015) .................... 5

vi

House Comm. on Gov't Reform-Minority

Staff, Waste, Fraud, and Abuse in

Hurricane Katrina Contracts, 109th Cong.,

2d Sess. (2006) ....................................................... 14

John J. Dilulio, Jr. et al., Improving

Government Performance: An Owner’s

Manual (1993) .......................................................... 8

John J. Dilulio, Jr., Response Government by

Proxy: A Faithful Overview,

116 Harv. L. Rev. 1271 (2003) ................................. 8

Jon D. Michaels, Privatization's Progeny,

101 Geo. L.J. 1023 (2013) ........................................ 8

Letter from Jennifer Piel, Dep’t of

Commerce, to Laura Iheanachor, CREW

(July 26, 2021)........................................................ 15

Michael Gerson, “Taming Big Government by

Proxy,” Wash. Post, Feb. 16, 2015 ........................... 7

Michael Wines, “Deceased G.O.P. Strategists’

Hard Drives Add New Details on the

Census Citizenship Question,” N.Y. Times,

May 30, 2019 .......................................................... 15

Nicholas Bagley, Bedside Bureaucrats: Why

Medicare Reform Hasn’t Worked,

101 Geo. L.J. 519 (2013) .......................................... 8

Paul C. Light, The Government Industrial

Complex: The True Size of the Federal

Government, 1984-2018 (2019)................................ 7

Paul C. Light, The True Size of Government:

Tracking Washington’s Blended Workforce,

Volcker Alliance Issue Paper (2017) ....................... 7

S. Rep. No. 89-813 (1965) ..................................... 9, 11

1

INTEREST OF AMICUS CURIAE

1

The Cato Institute was established in 1977 as a

nonpartisan public policy research foundation dedicated to advancing the principles of individual liberty,

free markets, and limited government. Cato’s Robert

A. Levy Center for Constitutional Studies was established in 1989 to promote the principles of limited constitutional government that are the foundation of liberty. Toward those ends, Cato publishes books and

studies, conducts conferences, and issues the annual

Cato Supreme Court Review.

This case concerns Cato because, like its companion petition, Rojas v. FAA, No. 21-133, it involves the

critical role played by the Freedom of Information Act

in providing transparency and accountability in

agency decision-making, even when—and especially

when—those decisions are being made with the assistance of self-interested private consultants.

INTRODUCTION AND

SUMMARY OF ARGUMENT

“In framing a government which is to be administered by men over men, the great difficulty lies in this:

you must first enable the government to control the

governed; and in the next place oblige it to control itself.” See Federalist No. 51, 322 (James Madison)

(Clinton Rossiter ed., 1961). This classic political1

Counsel for all parties received timely notice of amicus’s intent to file this brief and have consented thereto. No counsel for

any party authored this brief in whole or in part, and no person

or entity other than amicus or its members made a monetary contribution to fund its preparation or submission.

2

theory dilemma must be resolved in any viable system

of self-government. The Framers addressed it by baking multiple mechanisms of accountability into our

constitutional structure, from the rules we follow in

choosing elected representatives to the system of

checks and balances by which individual liberty is protected: “ambition being made to counteract ambition.”

Id. These systems were designed to force the government to remain accountable to the governed and to enlist every official in holding others in check.

The growth of the administrative state has tested

the durability of those constitutional accountability

systems in ways that would test the patience not just

of petitioner Jobe, but of Job himself. As agencies have

grown in size and power, assuming ever-growing control over Americans’ daily lives, the need for accountability has assumed greater importance. But federal

agencies have become less accountable.

Just as the dangers from the administrative state

first began to challenge the Constitution’s ability to

handle them, Congress stepped in with a statutory accountability assist, in the form of the Freedom of Information Act, Pub. L. 89-554, 80 Stat. 383 (1966).

FOIA provides a measure of assurance that the government continues to do business as the American

public expects, by making use of the Framers’ insight

that “‘a dependence on the people’ would be the ‘primary control on the government.’” Free Enter. Fund v.

Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 501

(2010) (quoting Federalist No. 51) (cleaned up).

FOIA arms private citizens with the best tool for

conducting their own oversight: information. That informational access allows everyday Americans,

3

organizations, and the press to require disclosure of

officials’ dealings, ensuring transparency in public

policy and accountability for policymakers. Protecting

FOIA is thus critical to ensuring that the American

people can keep their government in check. And FOIA

is doubly important in ensuring the private contractors and others who consult with the government actually help keep agencies properly focused on the people’s business, rather than distracting them from it.

Yet the court below hobbled FOIA’s ability to ensure transparency and accountability in an area

where they are needed most: the government’s interactions with those outside consultants. The threat to

individual liberty presented by the administrative

state has only accelerated as self-interested outsiders,

lobbyists, and others have been invited into agencies’

internal deliberations. And those threats have only

been compounded as many aspects of agency administration have been outsourced to private contractors.

Those shifts have added bureaucratic layers between

regulators and those charged with regulating them.

That dynamic puts essential government functions in

the hands of those whose personal interests might be

at odds with missions of the agencies they supplement.

Before this case, the court below had already held

that FOIA Exemption 5, which prevents disclosure of

“inter-agency and intra-agency” communications that

would be exempt from litigation discovery, can be extended to cover private consultants outside the

agency. 5 U.S.C. § 552(b)(5). Now it has stretched this

atextual “consultant corollary” further by holding that

Exemption 5 applies to documents created by those

4

who were being “consulted” only because the agency

was investigating them.

This Court cast doubt on the core of this “consultant corollary” in Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 9 (2001), which declared that “neither the terms of [Exemption 5] nor the

statutory definitions say anything about communications with outsiders,” and prohibited Exemption 5

from being applied to “communications to or from an

interested party seeking a Government benefit at the

expense of other applicants.” Klamath thus recognized

that Exemption 5’s justifications ended at the agency’s

edge—even as it stopped short of overruling the “consultant corollary” entirely.

Now the Court needs to step in and finish the job,

to prevent the “consultant corollary” from completely

overriding the statutory text Congress enacted. The

lower courts may have justified this rule based on the

potential costs of disclosure, including potential

chilling of open dialogue during agency deliberations

and issues surrounding attorney-client privilege. But

Congress has already weighed those costs and decided

that disclosure was still the better option. The lower

court’s decision to substitute its own judgment for

Congress and elevate intent over statutory text presents a “threat to the separation of powers” and a serious usurpation of the court’s “limited judicial role.”

Pet. App. 62a, 66a. It is up to this Court to put a stop

to that mission creep by granting the petition, resolving the split among the courts of appeals, and ending

the “consultant corollary” once and for all.

5

ARGUMENT

THE COURT SHOULD TAKE THIS CASE TO

RESTORE FOIA’S ESSENTIAL ROLE IN

ENSURING THAT FEDERAL AGENCIES AND

THOSE CONSULTING WITH THEM REMAIN

ACCOUNTABLE TO THE AMERICAN PEOPLE

The “consultant corollary” was birthed in 1970s

dicta from a D.C. Circuit opinion, Soucie v. David, 448

F.2d 1067, 1078 n.44 (D.C. Cir. 1971), during an era

where such “text-light” readings of FOIA exemptions

were common. Milner v. Dep’t of the Navy, 562 U.S.

562, 573 (2011). And the “corollary” has passed unexamined from circuit to circuit ever since. But this “relic

from a ‘bygone era of statutory construction’” cannot

be squared with FOIA’s plain text. Food Mktg. Inst. v.

Argus Leader Media, 139 S. Ct. 2356, 2364 (2019). And

if this atextual expansion of Exemption 5 is left standing, it will deprive the public of a sorely needed mechanism to provide essential oversight over federal agencies’ interactions with private consultants.

A. Federal Agencies Have Never Been More

Powerful,

and

Less

Accountable—

Especially When They Work with, and

through, Private Consultants

1. The modern administrative state has gradually

outgrown the Constitution’s mechanisms for controlling it. It has of course grown in size. See Hearing on

“Examining the Federal Regulatory System to Improve Accountability, Transparency and Integrity” before the Senate Comm. on the Judiciary, 114th Cong.,

Sess. 1 (2015) (statement of Senator Grassley) (noting

the existence of over “430 departments, agencies, and

6

sub-agencies in the federal government”). But even

more importantly, it has grown in influence, accreting

power from all branches of government. “[A]s a practical matter [agencies] exercise legislative power, by

promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement

actions and imposing sanctions on those found to have

violated their rules.” City of Arlington, Tex. v. FCC,

569 U.S. 290, 313–314 (2013) (Roberts, C.J., dissenting). This aggregation of power has made federal agencies a singular force on the American landscape,

“wield[ing[ vast power and touch[ing] almost every aspect of daily life.” Free Enter. Fund, 561 U.S. at 499.

2. But even as the administrative state’s size and

authority have grown, the mechanisms capable of

checking its overreach have withered. As the result of

both congressional inattention and their sheer size,

federal agencies enjoy such a “significant degree of independence” City of Arlington, 569 U.S. at 314 (Roberts, C.J., dissenting), that they risk “slip[ping] from

the Executive’s control, and thus from that of the people.” Free Enter. Fund, 561 U.S. at 49. “[T]he bureaucratic form” of the administrative state—“in its proportions, its reach, and its distance”—has thus proven

“impervious to full public understanding, much less

control.” Elena Kagan, Presidential Administration,

114 Harv. L. Rev. 2245, 2332 (2001).

The coordinate branches are faring no better at

controlling federal agencies than the Executive.

“[J]udicial oversight” is lacking. City of Arlington, 569

U.S. at 314 (Roberts, C.J., dissenting). And Congress

more often finds itself in the role of agency-power

7

enabler than constrainer, often deeming it convenient

to duck the “ramifications that come with hard decisionmaking” by “announcing vague aspirations and

then assigning others”—like administrative agencies—“the responsibility of . . . realiz[ing] its goals.”

Gundy v. United States, 139 S. Ct. 2116, 2133 (2019)

(Gorsuch, J., dissenting). Ambition is thus being made

to facilitate ambition.

3. The dangers of the administrative state have

only grown as the federal government’s collaborations

with outsiders have increased. Federal agencies are

inundated with input from an array of interested parties—from industry lobbyists, powerful businesspeople, academic experts, nonprofits, and even foreign

governments. And the federal government itself outsources the administration of many programs to private contractors—including individuals, businesses,

and “large social service nonprofits.” Michael Gerson,

“Taming Big Government by Proxy,” Wash. Post, Feb.

16, 2015, https://wapo.st/3BhvasW. Now “millions of

employees show up for work every day to do work once

performed by federal employees.” Paul C. Light, The

Government Industrial Complex: The True Size of the

Federal Government, 1984-2018, 88 (2019). Those private consultants now comprise over 40 percent of the

federal workforce. See Paul C. Light, The True Size of

Government: Tracking Washington’s Blended Workforce, Volcker Alliance Issue Paper (2017). And they

have taken over huge swaths of the responsibilities involved in running the federal government. Private

contracting is “now ubiquitous in military combat, . . .

rule promulgation, environmental policymaking,

prison administration, and public-benefits determinations.” Jon D. Michaels, Privatization’s Progeny, 101

8

Geo. L.J. 1023, 1025 (2013); see also, e.g., Jody Freeman & Martha Minow, eds., Government by Contract:

Outsourcing and American Democracy (2009).

So significant is this outsourcing trend that many

agencies today serve as little more than “financier, arranger, and overseer” of outside consultants. John J.

Dilulio et al., Improving Government Performance: An

Owner’s Manual 32 (1993). The U.S. Department of

Health and Human Services (HHS), for example, has

11 operating divisions, a nearly $500 billion budget,

and more than 65,000 employees whose main work is

“framing, processing, and monitoring literally hundreds of grant programs featuring literally thousands

of nongovernmental grantees.” John J. Dilulio, Jr., Response Government by Proxy: A Faithful Overview, 116

Harv. L. Rev. 1271, 1272–1273 (2003). HHS’s contractors have also taken over much of the work in making

Medicaid coverage decisions and providing services to

program beneficiaries. Nicholas Bagley, Bedside Bureaucrats: Why Medicare Reform Hasn’t Worked, 101

Geo. L.J. 519, 527–528, 532 (2013).

Outsourcing to private contractors is nearly as

ubiquitous in the EPA. That agency employs an army

of “private, for-profit contractors” to help with technical analysis and even make “policy decisions.” Dilulio, Response Government by Proxy, supra at 1275.

These consultants’ determinations are often granted

the same deference as that enjoyed by the agency itself. For instance, in Oklahoma v. EPA, the Tenth Circuit granted deference under Chevron, U.S.A., Inc. v.

Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) to determinations made by one of EPA’s private consultants in upholding an EPA-proposed rule that would

9

impose sulfur-dioxide emission limits on certain coalfired power plants under section the Clean Air Act, 42

U.S.C. § 110. 723 F.3d 1201, 1204, 1205, 1207 (10th

Cir. 2013). Faced with the competing arguments of the

“parties’ experts” on the “suitability and costs” of installing “scrubbers” to bring sulfur-dioxide levels

down to permissible limits, the court gave “deference

to the EPA,” or rather, the EPA’s consultants, as it involved a “technical or scientific matter[] within the

agency’s area of expertise.” Id. at 1206, 1216–1217. Accordingly, many private contractors take part in vital

governmental functions, and often enjoy the same authority as agency personnel.

4. Yet these private consultants and contractors

are usually far less accountable to the executive than

their counterparts inside the agency. Their relationships with agencies are usually attenuated and circumstantial. And the chief means agency officials

might use keep those contractors accountable—“by removing them from office, if necessary,” is severely

blunted. Free Enter. Fund, 561 U.S. at 483. Many consultants do not work for the government at all, and

thus cannot be fired. And as for those that do work for

the government, absent debarment for some serious

infraction under the Federal Acquisition Regulations,

48 C.F.R. §§ 9.406-2(a)(5) & (c), 9.407-2(c), the worst

agency officials can do is threaten cancellation of a single contract—often one of many the consultant has.

Private consultants, lobbyists, businesspeople and

other outsiders also sometimes possess private agendas that put them at odds with agency missions. Many

work for for-profit entities that direct their energies

more toward obtaining profit than serving the public

10

good. And some may suffer divided loyalties as the result of splitting their time between consulting for regulators and regulated industries.

In this case, for example, the National Transportation Safety Board’s consultants possessed an obvious

conflict of interest. They were, after all, the subjects of

the agency’s investigation. Their participation in the

investigation may have aided the information-gathering process by adding technical expertise. But it also

subtracted from the process by involving those with a

vested interest in making their case as to why their

companies and products should not be blamed for the

crash. More broadly, these divided loyalties often complicate the relationships between federal agencies and

their contractors. In these circumstances, the need for

oversight is greatest, but the normal mechanisms for

governmental oversight are lacking.

B. FOIA Plays an Essential Role in Providing

Oversight and Accountability for Federal

Agencies and Their Armies of Private

Consultants

1. FOIA plays an irreplaceable role in providing accountability in agencies’ dealings with private consultants—by making them disclosable to the public. FOIA

is Congress’s tool to fulfill “the need for transparency,”

Kagan, supra at 2332, created by the “the very vastness of our Government and its myriad of agencies,” S.

Rep. No. 89-813, at 3 (1965). The Act serves “to ensure

an informed citizenry, vital to the functioning of a

democratic society.” NLRB v. Robbins Tire & Rubber

Co., 437 U.S. 214, 242 (1978). It arms the people with

information—sometimes pried from “unwilling officials.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 360–

11

61 (1976). And thus armed, the public can open the

“black box” of government bureaucracy, “the places

where exercises of coercive power are most unfathomable and thus most threatening.” Kagan, supra at

2332. Citizens can expose dark places within the government to “the sharp eye of public scrutiny,” Dep’t of

Justice v. Reporters Comm. for Freedom of Press, 489

U.S. 749, 779 (1989), enabling the people to serve as a

“check against corruption and hold the governors accountable to the governed.” Robbins Tire & Rubber

Co., 437 U.S. at 242.

FOIA is thus governed by the ethos that “Public

Business is the public’s business,” Harold L. Cross,

The People’s Right to Know xiii (1977), and “disclosure,

not secrecy, is the dominant objective of the Act.” Klamath, 532 U.S. at 8. Consistent with this objective,

“FOIA . . . mandates that an agency disclose records

on request, unless they fall within one of nine exemptions, [which] are ‘explicitly made exclusive,’ and must

be ‘narrowly construed,’” Milner v. Dep’t of the Navy,

562 U.S. 562, 565 (2011) (quoting EPA v. Mink, 410

U.S. 73, 79 (1973) and FBI v. Abramson, 456 U.S. 615,

630 (1982)).

2. And in FOIA, Congress demonstrated a clear intent to extend its mandate of accountability and transparency to agencies’ communications with their outside consultants, because those communications generally fall outside FOIA exemptions. An agency’s communications with private consultants might become

shielded from disclosure when those consultants share

information covered by Exemption 4, which concerns

records containing “trade secrets and commercial or financial information” that is “privileged or

12

confidential.” 5 U.S.C. § 552(b)(4). They might also enjoy protection under Exemption 8 if the communications include 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).

But communications between agencies and consultants will not be covered by Exemption 5. That exemption covers “inter-agency” and “intra-agency” communications—i.e., communications between and

among government agencies. An “agency” is an “authority of the Government of the United States.” Pet.

9 (quoting 5 U.S.C. §§ 551(1), 552(f)(1)). A private consultant is thus not a government agency under the

statute’s definition, so documents exchanged with it

cannot be “inter-agency” or “intra-agency” records. It

really is that simple.

C. The Atextual “Consultant Corollary”

Cripples Oversight and Accountability for

Agencies’ Private Consultants

Shielding agency communications with contractors

and other outside consultants under the “consultant

corollary” prevents the public from accessing information that Congress thought should be disclosed.

And doing so cripples the oversight and accountability

FOIA meant to provide, because Congress had numerous reasons for focusing on the interactions between

agencies and their private consultants and making

them available to the public.

1. For one thing, communications between agencies and consultants may be the only information the

13

public can obtain about agencies’ private consultants.

Those private consultants’ internal deliberations cannot be examined via FOIA, because they do not involve

interactions with government agencies and therefore

generate no “agency record” within the agency’s “control” or “possession” that would be subject to FOIA disclosure. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,

144–145 (1989). Only when private contractors communicate with agencies will an agency record be generated that the public could obtain, making these communications the only means by which the public can

examine whether these private consultants are assisting agency business or undermining it.

Denying the public access to these records would

thus prevent citizens from obtaining answers to vital

questions about how outsourcing is transforming government, whether consultants are providing accurate

information, whether essential functions are being

performed by competent consultants, whether those

consultants are capable of delivering work as promised, and whether that work is accurate and grounded

in sound science—or whether it is systemically biased,

infringing individual rights, or even doing the job it is

intended to do. Preventing information access will also

deny the public notice about whether agencies are

providing proper oversight to those consultants.

The answers to these questions can be life-altering,

as FEMA demonstrated during Hurricane Katrina,

when private contractors systematically failed to deliver as promised and the costs were measured in incalculable pain and suffering. See generally House

Comm. on Gov't Reform-Minority Staff, Waste, Fraud,

14

and Abuse in Hurricane Katrina Contracts, 109th

Cong., 2d Sess. (2006).

2. Public access to agency communications with

private consultants is also critical in uncovering fraud,

corruption, and waste. Public sector consultants are

often pursuing their own agendas as much as helping

the agencies they are consulting with. And contractors

frequently obtain work through lobbying and influence-peddling as much as through technical expertise.

That raises risks of corruption, undue influence, and

even fraud. Agency officials may be unable or unwilling to discover these abuses, since they might be the

victim of the crime—or an accomplice to it. It is thus

vital that the public be permitted to examine the interactions between government officials and consultants, because those interactions are where the corruption, influence-peddling, and fraud occurs.

3. Finally, shielding agencies’ communications

with private consultants under the “consultant corollary” could provide a perverse incentive for agencies to

outsource their dirtiest work to outsiders—things that

agencies know will not survive legal or public scrutiny.

Indeed, such dark outsourcing is already occurring, as

the Trump Administration’s unsuccessful attempt to

add a citizenship question to the U.S. Census illustrates in vivid detail. The Court invalidated that effort

based on what it found to be missing from the administrative record: a line of reasoning that could match

up “the decision the Secretary” of Commerce Wilber

Ross made to add the citizenship question and “the rationale he provided” for doing so—protecting the Voting Rights Act—which “seem[ed] to have been

15

contrived.” Dep’t of Commerce v. New York, 139 S. Ct.

2551, 2556 (2019).

But quite apart from the absence in the record of

any proper motive for adding the citizenship question,

the Commerce Department also possessed an improper motive that it kept outside the administrative

record. The Department hired an outside consultant,

Thomas Hofeller, to determine if Republicans could

gain partisan advantage if the question were added.

Using Texas as an example, Hofeller concluded that

adding a citizenship question “would be advantageous

to Republicans and non-Hispanic whites, and would

dilute the political power of the state’s Hispanics.” Michael Wines, “Deceased G.O.P. Strategists’ Hard

Drives Add New Details on the Census Citizenship

Question,”

N.Y.

Times,

May

30,

2019,

https://perma.cc/9EUP-PAQ8. It was this chance for

partisan advantage, not any concern for protecting the

VRA, that drove the decision to change the census.

Yet the most alarming aspect of that story is that

the only reason Hofeller’s studies and communications

were ever made public was because his daughter went

through his hard drive after he passed away. Id. They

were never produced in discovery and the Commerce

Department shielded at least some of its communications with Hofeller from FOIA disclosure, asserting

Exemption 5. See Letter from Jennifer Piel, Dep’t of

Commerce, to Laura Iheanachor, CREW (July 26,

2021), https://bit.ly/2WuELxm. If the atextual “consultant corollary” remains law, then even more dark

outsourcing will be encouraged. And that is compelling reason enough why it should not be left standing.

16

5. Furthermore, none of the policy reasons courts

have offered for the “consultant corollary” serve to justify its judicial annexation to the statute.

Courts have noted that one purpose of Exemption

5 was to encourage a full and frank exchange of ideas

during the agency policymaking process “without fear

of publicity.” Pet. App. 20a (quoting Wu v. Nat’l Endowment for Humanities, 460 F.2d 1031, 1032 (5th

Cir. 1972)). But Congress was very specific that its

concern for the deliberative process extended only to

the agency policymaking process. In the text of Exemption 5, Congress distinguished between the deliberative processes it sought to facilitate and shield from

disclosure and those it wanted to be made public. Congress put discussions between agencies and consultants squarely in the latter camp, deeming the public

interest in exposing those interactions to sunlight to

be worth any risk to the deliberative process. This interest in fostering unfettered deliberation therefore

provides no general invitation for courts to decide for

themselves which deliberations to facilitate, nor does

it provide allowance for judges to bring them into the

protections of the statute by fiat. The deliberation-fostering justification for shielding communications under Exemption 5 ends at the agency’s edge.

The other justification that some courts have offered for the “consultant corollary”—that it is needed

to protect attorney-client privilege or outside attorney’s work product—fares no better. Rojas v. FAA, 989

F.3d 666, 673 (9th Cir. 2021). This concern is not only

speculative, because few agencies hire outside lawyers, id. at 698, it also leads to an overbroad remedy,

because Exemption 5 covers far more than privileged

17

documents. It covers anything unobtainable in discovery, Klamath, 532 U.S. at 8.

Broadening Exemption 5 based on concerns about

privilege is also largely unnecessary, since Exemption

4 already prevents disclosure of privileged information. But worst of all, judicial concerns over privilege fail to justify the “consultant corollary” because

such cost-benefit analysis belongs to Congress. It is

Congress’s job to weigh the concerns over privilege

against the public’s interest in disclosure. And Congress gave every indication that it believed “an attorney for the Government, paid from public funds,

should be just as accountable to the public which pays

his or her salary as should any other category of wellpaid public servant.” Dept. of Justice, Memo. from

Quin Shea to Bob Saloshin, Exemption 5, “Chilling Effect” and Openness in Government 2 (Nov. 7, 1977). If

Congress deems the benefits of disclosure to outweigh

the risks, courts are obliged to respect that judgment

rather than rewrite the statute to suit their own preferences to the contrary. The Court should intervene to

ensure that they do so.

If invalidating the “consultant corollary” forces

agencies to be more circumspect about whether to hire

outside counsel, and how agencies should communicate with them, then so be it. Those functions can be

brought back inside the agency. And if Congress wants

to reinstitute the corollary, or wishes to provide an exception that specifically addresses privilege and workproduct issues concerning outside attorneys, it can

certainly do that too.

Indeed, Congress has shown great willingness to

revisit FOIA “to better balance the public’s right to

18

know,” H.R. Rep. No. 114-391, 8 (2016), having

amended statute 10 different times since its enactment, 2 and having held scores more hearings and compiled countless more reports. See Br. of Amici Curiae

Freedom of Information Act and First Amendment

Scholars in Support of Respondent at Parts I.B.–C.,

Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct.

2356 (2019) (No. 18-481).

The statute that Congress could—and likely

would—draft in response to this case would enjoy

greater constitutional and institutional legitimacy

than lower courts decisions expanding Exemption 5.

And a statutory remedy to privilege concerns would

also prove better capable of achieving the proper balance for an exemption than judges wielding blunt

weapon of appellate review to hammer an atextual

and overbroad “consultant corollary” into the statute.

Accordingly, if the “consultant corollary” is to become law, it should be through a law passed by Congress, not through judicial usurpation of the lawmaking function. The Court should take this case to excise

the “consultant corollary” from FOIA and give Congress that chance.

2

See Pub. L. 93-502 §§ 1-3, 88 Stat. 1561-64 (1974); Pub. L.

94-409, § 5(b), 90 Stat. 1247 (1976); Pub. L. 95-454, tit. IX, §

906(a)(10), 92 Stat. 1225 (1978); Pub. L. 98-620, tit. IV, Subtitle

A, § 402(2), 98 Stat. 3357 (1984); Pub. L. 99-570, tit. I, subtit. N,

§§ 1802, 1803, 100 Stat. 3207, 3207 (1986); Pub. L. 104-231, §§ 311, 110 Stat. 3049 (1996); Pub. L. 107-306, tit. III, subtit. B, §

312, 116 Stat. 2390 (2002); Pub. L. 110-175, §§ 3, 4(a), 5, 6(a)(1),

(b)(1), 7(a), 840(a), 12, 121 Stat. 2525, 2526, 2527, 2530

(2007); Pub. L. 111-83, tit. V, § 564(b), 123 Stat. 2184 (2009); Pub.

L. 114-185, § 2, 130 Stat. 538 (2016).

19

CONCLUSION

For the foregoing reasons, this Court should grant

the petition.

Respectfully submitted,

Ilya Shapiro

William M. Yeatman*

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 842-0200

ishapiro@cato.org

*Admitted to the D.C. Bar under D.C. App. R. 46-A. Supervised by D.C. Bar member.

October 28, 2021

J. Carl Cecere

Counsel of Record

CECERE PC

6035 McCommas Blvd.

Dallas, TX 75206

(469) 600-9455

ccecere@cecerepc.com