Rojas v. FAA, No. 17-55036, 2021 WL 788480 (9th Cir. Mar. 2, 2021) (Watford, J.)

Rojas v. FAA, No. 17-55036, 2021 WL 788480 (9th Cir. Mar. 2, 2021) (Watford, J.)

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

Disposition:  After rehearing en banc, affirming in part, vacating in part, and remanding in part district court's grant of government's motion for summary judgment

• Exemption 5, "Inter-Agency or Intra-Agency" Threshold Requirement:  The Court of Appeals for the Ninth Circuit relates that "[the company that had created a biographical assessment as a selection tool for the FAA's use in hiring] is not a federal agency in its own right, . . . so the three documents it prepared and sent to the FAA cannot be deemed 'inter-agency' memorandums."  However, regarding Exemption 5, the court notes that "Congress concluded that shielding privileged communications from disclosure was desirable because 'the "frank discussion of legal or policy matters" in writing might be inhibited if the discussion were made public,' with the consequence that the quality of an agency's decisions and policies 'would be the poorer as a result.'"  The court finds that "[a] Congress whose aim was to further the purposes just discussed would not have limited Exemption 5's coverage to communications authored by agency employees."  "Outside consultants would presumably be just as hesitant as agency employees to engage in frank discussion of legal and policy matters if they know that their advice and analysis may be made public, with the same detrimental effect on the quality of the agency's decision-making."  "And an agency's litigation opponents could use FOIA to circumvent civil discovery privileges just as effectively whether the privileged communications to be disclosed were between the agency and its outside consultants or between agency employees."  "Reading Exemption 5 to exclude communications with outside consultants altogether, as [the requester] urges [the court] to hold, would require us to assume that Congress saddled agencies with a strong disincentive to employ the services of outside experts, even when doing so would be in the agency's best interests."  "[The court] see[s] no evidence to support that assumption in FOIA's text or its legislative history."  "Given these considerations, [the court] do[es] not agree that [the requester's] reading of the term 'intra-agency' is the only textually permissible interpretation of Exemption 5's scope."  "While [the court] [is] mindful of [its] obligation to construe FOIA's exemptions narrowly, [it] must at the same time give them 'a fair reading,' just as [the court] would any other statutory provision."  "In [the court's] view, a fair reading of the term 'intra-agency' is the one acknowledged by the Supreme Court in Department of Interior v. Klamath Water Users Protective Association, 532 U.S. 1, 121 S. Ct. 1060, 149 L.Ed.2d 87 (2001)."  "[The court] therefore join[s] the six other circuits[, the D.C., 1st, 2d, 4th, 5th, and 10th,] that have recognized some version of the consultant corollary to Exemption 5."  "To be deemed 'within' an agency for purposes of Exemption 5, a consultant must be hired by the agency to perform work in a capacity similar to that of an employee of the agency, such that 'the consultant functions just as an employee would be expected to do.'"  "That means the consultant must 'not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it.'"  "Applying these general principles here, [the court] conclude[s] that [the outside company] created the three documents at issue while performing work in the same capacity as an employee of the FAA."  "The FAA's Office of the Chief Counsel asked [the company] to prepare summaries of its validation work to assist the agency's lawyers in defending the validity of the 2015 biographical assessment."  "In creating each of the three documents, [the outside company] functioned no differently from agency employees who, although possessing less expertise, could have been tasked by the FAA's lawyers with preparing the same summaries."
  
  Circuit Judge Collins, concurring in the decision, "write[s] separately to respond to the dissents' erroneous contentions that Justice Scalia's reading of Exemption 5 is 'atextual.'"  Judge Collins writes that "the dissents overlook the fact that the actual words of the statute require only that the 'memorandum[ ]' be 'intra-agency,' not necessarily that the authors and recipients be formal employees of that agency."  Additionally, Judge Collins notes that "[t]he intra-agency memorandums covered by Exemption 5 are those 'that would not be available by law to a party other than an agency in litigation with the agency.'"  Judge Collins concludes that "[n]either dissent seriously disputes that the employee-only reading of Exemption 5 would impede its express purpose by, for example, requiring disclosure of attorney-client communications with any outside counsel."
  
  Circuit Judge Wardlaw, with whom Chief Judge Thomas and Circuit Judge Hurwitz join, writes separately to concur in part and dissent in part.  Judge Wardlaw writes that "the term 'intra' then meant 'in' or 'within.'"  "Coupled with FOIA's definition of 'agency,' the term 'intra-agency' clearly signals the idea of being 'in' or 'within' a federal agency."  "The question then becomes what Congress meant when it joined that understanding of 'intra-agency' to the words 'memorandums or letters.'"  Judge Wardlaw writes that "Exemption 5's silence on communications and documents from outsiders is especially notable because other FOIA exemptions explicitly include such communications and documents. Exemptions 4 and 8 expressly encompass information generated outside of a federal agency."  "Congress thus knew how to specify that FOIA exemptions cover documents from outside third parties, and it did so in these other exemptions."  Judge Wardlaw concludes that "Exemption 5's text is crystal clear:  documents or communications exchanged with outside consultants do not fall within that exemption."  "For 'outside consultants' are, by definition, not 'within' a federal agency."  "They are independent contractors, hired to assist an agency with a finite task that the agency has decided to outsource."  "Indeed, [the outside company here] and its employees may have worked alongside the FAA's employees in this case, but it and its employees are not an arm of the Executive Branch."  Judge Wardlaw writes that "even if there are two equally plausible readings of a given FOIA exemption, [the court] must favor the one that promotes government transparency – not secrecy."
  
  Chief Judge Thomas, concurring in part and dissenting in part, "write[s] separately to observe that, even if the consultant corollary formed part of Exemption 5, it would not protect the specific information sought in this case."  Chief Judge Thomas notes that "[t]he FAA has recognized its obligation under the Uniform Guidelines to conduct validation studies and maintain them[]" and believes that "[a] document that an agency is required to produce and maintain is not a document prepared in anticipation of litigation."
  
  Circuit Judge Bumatay, concurring in part and dissenting in part, writes that "'the most natural meaning of the phrase "intra-agency memorandum" is a memorandum that is addressed both to and from employees of a single agency' and an 'inter-agency memorandum' is 'a memorandum between employees of two different agencies.'"  "These definitions leave no room for documents created by those outside of an agency's employment."  "To [Judge Bumatay], that is the end of the inquiry and Exemption 5 doesn't cover consultant work product."  "Because [Judge Bumatay] do[es] not believe that [the court's] limited judicial role allows [the court] to subvert the plain text of a law to our own sense of its purpose, [Judge Bumatay] respectfully dissent[s]."
   
• Exemption 5, Attorney Work-Product Privilege:  The Court of Appeals for the Ninth Circuit holds that "[a]fter conducting [its] own in camera review of the documents at issue, [the court] agree[s] with the district court that two of the three documents listed in the Vaughn index are protected by the attorney work-product privilege and thus would not be subject to discovery in civil litigation with the FAA."  "However, a remand is necessary to determine whether the third document is also protected by the privilege."  The court finds that "the FAA's declarations adequately explained why two of the three documents were prepared in anticipation of litigation."  However, "[t]he FAA's declarations do not address the one remaining document, which is described in the Vaughn index as a document prepared by [the outside company] dated September 2, 2015."  The court finds that "in camera review of the document suggests that it may have been drafted as a response to a request for information from an outside third party, rather than as an internal memorandum from [the outside company] to the FAA's lawyers."  "As a result, on this record the FAA failed to carry its burden of establishing that this document was prepared in anticipation of litigation."  Therefore, "[the court] vacate[s] the district court's entry of summary judgment for the FAA as to the third document, dated September 2, 2015, and remand[s] for further proceedings with respect to that document."
   
• Litigation Considerations, Adequacy of Search:  Regarding "[the requester's] conten[tion] that the FAA should have been required to search [the outside company's] records for documents responsive to his FOIA request, since such a search would undoubtedly have turned up the data underlying [the company's] validation work as well as the validation studies themselves, rather than just the summaries of those studies included in the FAA's Vaughn index," the Court of Appeals for the Ninth Circuit finds that "[d]ocuments that are not in an agency's possession do not constitute 'agency records' even if the agency could have obtained them by asking a third party to produce them."  However, the court finds that "[t]he FAA's declaration falls short of what [the court's] cases require because it offers no details about how the search was conducted."  "For example, it does not describe, even in general terms, the number of attorneys involved, the search methods they used, the body of records they examined, or the total time they spent on the search."  "Without details such as these, [the court] [is] in no position to conclude that the agency's search was reasonably calculated to locate all responsive records."
  
  Circuit Judge Ikuta, with whom Circuit Judge Graber and Callahan joins, and Circuit Judge Bumatay joins except as to one issue, writes to dissent in part to "disagree with the majority's conclusion that the declaration submitted by the FAA failed to show that the agency 'conducted a search reasonably calculated to uncover all relevant documents' in response to [the requester's] FOIA request."  Circuit Judge Ikuta writes that "asking the lawyers in the office who had been assigned to provide legal advice regarding the revisions to the . . . hiring process to search their files for responsive documents would be a reasonable response to [the requester's] FOIA request."  "And that was exactly what [FAA] did."  "The majority fails to provide any reasonable analysis or explanation for its contrary—and conclusory – holding that the FAA's declaration 'falls short' of what is required."  "Instead of explaining why the FAA's description of its search was not 'reasonably detailed' in the particular context of this case, . . . the majority makes a rote recital that the declaration 'offers no details about how the search was conducted,' because it fails to describe 'the number of attorneys involved, the search methods they used, the body of records they examined, or the total time they spent on the search.'"  "This criticism is not reasonable."  "The declaration provides all relevant information:  the office that conducted the search, the persons asked to conduct the search, the search procedure, and the search scope."  "Although the declaration does not state how many attorneys were involved, or how much time was spent on their search, the majority fails to explain why the lack of such details here makes the information that was provided fatally inadequate."