Rojas v. FAA, No. 17-17349, 2019 WL 5382055 (9th Cir. Oct. 22, 2019) (Ikuta, J.)

Rojas v. FAA, No. 17-17349, 2019 WL 5382055 (9th Cir. Oct. 22, 2019) (Ikuta, J.)

Re:  Request for records concerning screening tool used as part of air traffic controller hiring process

Disposition:  Affirming in part, reversing in part, and vacating and remanding in part district court's grant of government's motion for summary judgment

• Exemption 2:  The Court of Appeals for the Ninth Circuit "conclude[s] that the FAA's rules and practices for scoring tests relating to the selection of employees, including its rules and practices regarding the minimum passing score and the score for a particular test, qualify under Exemption 2."  The court explains that "Exemption 2 applies to internal rules and practices exclusively connected with 'the selection, placement, and training of employees,' including 'hiring and firing.'"  The court finds that "[i]t is undisputed that the FAA's rules and practices for scoring the Biographical Assessment are internal and that the test is used solely as one step in the process of selecting individual employees."
   
• Exemption 6:  "Because [one] email . . . relates to the FAA's change in hiring practices, [the Court of Appeals for the Ninth Circuit] conclude[s] that the public interest in identifying the individuals receiving this information outweighs the privacy interests of those individuals."  First, "[the court] conclude[s] that government records containing personal email addresses constitute 'similar files,' because a personal email address 'can be identified as applying to [a particular] individual.'"  Second, the court finds that "[t]here is at least a 'minor privacy interest' in personal email addresses."  The court explains that "[t]his is not a demanding standard; rather, a disclosure implicates a cognizable privacy interest if it affects either 'the individual's control of information concerning his or her person,' . . . or would possibly expose the individual to harassment . . . ."  Third, the court explains that "because the FAA has established a nontrivial privacy interest in its employees' email addresses, the burden shifts to [the requester] to establish that the public interest in the information outweighs the privacy interest."  "Although this issue is quite close, FOIA's 'strong presumption in favor of disclosure,' . . . leads us to conclude that where FAA employees used personal email addresses to receive information relating to the FAA's change in selecting air traffic controllers, [the requester] has carried his burden of showing that the FAA employees' privacy interest in their personal email addresses is outweighed by the 'robust interest of citizens' right to know "what their government is up to"' in making the changes it did."  The court finds that "[t]here is a clear public interest in assessing FAA employees' use of information relating to the FAA's selection of air traffic controllers."  "Further, in this case, providing the 'particular email address' receiving the information from the FAA email account 'is the only way to identify' the FAA employees involved in discussing these issues."  The court notes, however, that "the public's interest is limited to learning their identity."  "Therefore, the FAA could satisfy its obligation under FOIA by identifying the email recipients by name, instead of revealing the recipients' personal email addresses."  Finally, the court finds that "the email that requests employees to refer calls from [a] reporter . . . to FAA Public Affairs does not relate to the FAA's change in selecting air traffic controllers."  "Therefore, the privacy interests of the individuals receiving this information are not outweighed by the public interest in what the FAA was 'up to' when it changed its hiring practices."
   
• Procedural Requirements, "Agency Records":  The Court of Appeals for the Ninth Circuit "vacate[s] the district court's order granting summary judgment with respect to the 202 withheld emails and remand[s] to the district court to apply Tax Analysts's second prong consistent with this opinion."  The court first notes that "[t]he withheld emails at issue here were either sent to or received by . . . an FAA employee[] using his official FAA email account, and were maintained in the FAA's computer servers."  "The parties do not dispute that these emails were created or obtained by the FAA."  "[The court] therefore turn[s] to the second prong, whether an agency is in 'control' of the requested documents."  "Although the FAA asks [the court] to adopt [the District of Columbia's four factor agency record control] test and use it to determine whether the emails at issue are agency records, [the court] cannot fully embrace it."  "First, it was originally developed before the Supreme Court's decision in Tax Analysts, . . . and its first factor is in tension with the Court's conclusion that 'the intent of the creator of a document' is not relevant to a determination of whether the document is an agency record . . . ."  "Second, some of the D.C. Circuit's factors are less helpful when applied to emails and other electronic records, as opposed to physical records more common when the factors were developed."  "Rather than adopting the D.C. Circuit's four-factor test, we hold that a court may consider a range of evidence to determine whether specified records are in the agency's possession in connection with agency-related business, or instead involve personal matters not related to the agency's 'transaction of public business.'"  "As suggested by the D.C. Circuit, evidence relating to the agency's use of documents (including its system for preserving, retrieving, or disposing of the documents, and any reliance on the documents by agency employees) may be relevant to this inquiry."  "[The court] [has] no trouble concluding that the FAA possessed the withheld materials, because they were discovered in the FAA's computer system."  "But it is less clear whether the FAA possessed any of the documents in the conduct of its official duties or public business."  "[The court's] independent review suggests that some of the withheld documents were not purely personal."  However, "[t]he district court provided little explanation of its grant of summary judgment in favor of the FAA on this issue, stating only that the withheld documents were 'personal emails . . . that do not respond to [the requester's] FOIA  requests or the mission of the FAA.'"  "Without more explanation, [the court] cannot tell whether the district court appropriately considered the factors [the court] set out today."  "Because in FOIA cases, a district court must provide sufficiently detailed disclosure of the factual and legal basis for its decision . . . [the court] think[s] it prudent to remand to the district court to address this issue under the appropriate standards in the first instance."