Rojas v. FAA, No. 17-55036, 2019 WL 1781425 (9th Cir. Apr. 24, 2019) (Molloy, J.)

Rojas v. FAA, No. 17-55036, 2019 WL 1781425 (9th Cir. Apr. 24, 2019) (Molloy, J.)

Re:  Request for records concerning empirical validation of biographical assessment screening test

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

• Litigation Considerations, Adequacy of Search:  The Court of Appeals for the Ninth Circuit finds that "[c]onstruing the facts in the light most favorable to [the requester], the FAA has not shown 'that it undertook an adequate search . . . .'"  The court holds that "FAA's declarations did not sufficiently describe the agency's search procedures."  The court finds that "[defendant's] declaration is conclusory."  "It omits relevant details, such as names of the attorneys who searched the relevant documents and the amount of time the Office of the Chief Counsel devoted to the search."
   
• Exemption 5, "Inter-Agency or intra-Agency" Threshold Requirement:  The Court of Appeals for the Ninth Circuit holds that "[it has] yet to adopt the consultant corollary in this Circuit," and "[b]ecause the consultant corollary is contrary to Exemption 5's text and FOIA's purpose to require broad disclosure, [it] decline[s] to do so."  First, the court finds that "[t]he consultant corollary contravenes Exemption 5's plain language."  "A third-party consultant, then, is not an agency as that word is used in FOIA , generally, or Exemption 5, particularly."  "In addition to contravening the statutory text, the consultant corollary also undermines the purpose of FOIA."  The court explains that "exemptions are construed narrowly" and "Congress has instructed as much with the statutory language that the exemptions do 'not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section.'"  Finally, "[the court is] not convinced that the potential harm to the government warrants adopting the consultant corollary's broad reading of Exemption 5."  The court explains that "absent the consultant corollary, agencies can still avoid disclosure under Exemption 5 by keeping potentially privileged material within the government."  "If this proves unworkable, as the dissent argues, the proper remedy lies with Congress, not the courts."  "Because [the court] reject[s] the consultant corollary, the records at issue can no longer be considered 'intra-agency' documents, and Exemption 5 does not apply."  "Thus, [the court] need not address whether the records would be privileged under Exemption 5's second step."
  
  Circuit Judge Christen writes separately to "disagree with the majority's rejection of the 'consultant corollary' – a doctrine adopted by seven of our sister circuits."  Judge Christen argues that the consultant corollary "allows agencies to shield privileged materials from disclosure to the same extent they would in discovery."  "By rejecting the consultant corollary, the majority gives the FOIA a truly scope."  Judge Christen "read[s] the statute differently."  Judge Christen explains that "[n]othing in Exemption 5's text requires that the materials be created by the agency itself, nor do the statute's definitions dictate that an 'intra-agency memorandum' includes only those materials that agency employees (as opposed to retained consultants) prepare in-house."  "Here, the FAA specifically engaged [an outside company] to use its expertise to create biometric summaries on behalf of the FAA."  "The FAA took possession, reviewed and relied on the summaries, then stored and maintained them."  "For all intents and purposes, the three withheld documents are the FAA's memoranda and [the court] should treat them just as [it] would treat a memorandum created by an internal FAA employee."
   
• Procedural Requirements, Searching for Responsive Records:  The Court of Appeals for the Ninth Circuit rejects plaintiff's "argu[ment] that the FAA has an obligation under FOIA to retrieve any responsive documents, such as the underlying data to the summaries, held by [an non-governmental entity]."   The court finds that "FOIA places no such obligation on an agency."