Jobe v. NTSB, No. 20-30033, 2021 WL 2472490 (5th Cir. June 17, 2021) (Duncan, J.)

Jobe v. NTSB, No. 20-30033, 2021 WL 2472490 (5th Cir. June 17, 2021) (Duncan, J.)

Re:  Request for records concerning fact-finding phase of investigation of 2011 helicopter crash in Hawaii

Disposition: Reversing and remanding district court's partial grant of requester's motion for summary judgment

• Exemption 5, "Inter-Agency or Intra-Agency" Threshold Requirement:  The Court of Appeals for the Fifth Circuit holds that "[t]he district court erred."  The court relates that "[t]he 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."  The court finds that "[Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001)] 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 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."  "[The court] therefore conclude[s] that the outside parties solicited by the NTSB qualify as 'consultants' under Exemption 5's corollary."  "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."
  
  Circuit Judge Ho, dissenting, writes that "[i]f the terms 'inter-agency' and 'intra-agency' exclude anything, [Judge Ho] would think they exclude government communications with employees of the very entity the government is trying to regulate."  "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."  "[Judge Ho has] 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."