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Rojas v. FAA, No. 15-05811, 2016 U.S. Dist. LEXIS 156710 (C.D. Cal. Nov. 10, 2016) (Marshall, J.)


Rojas v. FAA, No. 15-05811, 2016 U.S. Dist. LEXIS 156710 (C.D. Cal. Nov. 10, 2016) (Marshall, J.)

Re: Request for records concerning plaintiff's application for employment

Disposition: Granting defendant's motion for summary judgment

  • Litigation Considerations, Adequacy of Search: The court holds that "[p]laintiff fails to demonstrate how the FAA's initial search of the wrong records conveys bad faith on the part of the agency, when a second search was conducted and responsive records were located." The court relates that "[p]laintiff states no objection to the evidence offered by the FAA, nor does he challenge the methods employed by the FAA to conduct its search." Based on his only objection, the court finds that "[p]laintiff fails to meet his burden of presenting evidence to show a genuine issue of material fact regarding whether the search conducted by the FAA was adequate under FOIA."
  • Exemption 5, Threshold: "The Court finds that the records withheld by the FAA regarding the 2015 biographical assessment constitute inter-agency memoranda created by a government agency." The court explains that, "[a]lthough the records were composed by [an outside consultant], courts have upheld the application of FOIA Exemption 5 to materials composed and supplied by outside contractors." The court notes that "FAA relies on the argument that, as a consultant, [the outside entity] 'stood in the shoes' of FAA."
  • Exemption 5, Attorney Work-Product Privilege: The court holds that "[t]he FAA has satisfied its burden of demonstrating, through . . . detailed declarations . . . and through the Vaughn Index attached to the Motion, that the records the FAA withheld under Exemption 5 are protected by the attorney work-product privilege." Responding to plaintiff's counter arguments, the court finds that "[d]ocuments may be considered attorney work product . . . even where they are created by consultants at the request of counsel." Also, "an agency need not segregate and disclose a document's factual contents if the document itself is protected from disclosure pursuant to the attorney work-product privilege." Additionally, "[t]he attorney work-product doctrine protects documents prepared in contemplation of litigation, including administrative proceedings." Also, "so-called 'dual purpose' documents can fall within the ambit of the work-product doctrine if 'their litigation purpose so permeates any non-litigation purpose that the two purposes cannot be discretely separated from the factual nexus as a whole.'" Finally, the court finds that "there is no evidence that the summaries withheld under Exemption 5 were previously disclosed by the FAA" and "Exemption 5 [offers] protection for records regarding the same subject matter [of those previously disclosed] that were created in anticipation of litigation."
  • Exemption 5, Attorney-Client Privilege: The court holds that "[t]he FAA offers no evidence that the records withheld involve a client seeking legal advice from a professional legal adviser." "Although the records were prepared by [the consultant] at the request of the Office of Chief Counsel, they contain no request for, or discussion of, legal advice." "Accordingly, the withheld records do not fall within the scope of the attorney-client privilege."
  • Litigation Considerations, Special Counsel Provision: "Having found that the records were properly withheld under Exemption 5, the Court denies Plaintiff's request[]" "that this matter be referred for an independent investigation pursuant to 5 U.S.C. § 552(a)(4)(F)."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Attorney-Client Privilege
Exemption 5, Attorney Work-Product Privilege
Exemption 5, Inter-Agency or Intra-Agency Threshold Requirement
Litigation Considerations, Adequacy of Search
Litigation Considerations, Special Counsel Provision
Updated January 10, 2022