1 F.4th 396
5th Cir.2021Background
- A 2011 sightseeing helicopter crash in Hawaii killed five; NTSB conducted a fact-finding investigation and appointed party representatives and technical advisors from Blue Hawaiian (operator), Eurocopter, and Turbomeca (manufacturers).
- Party representatives and advisors were supervised by the NTSB Investigator in Charge (IIC) and bound by regulations limiting use and disclosure of investigation materials.
- Tony Jobe (lawyer for victims’ families) submitted FOIA requests; NTSB released ~4,000 pages but withheld 2,349 pages under FOIA Exemption 5.
- The district court ordered disclosure of about 125 pages, holding the "consultant corollary" to Exemption 5 did not cover communications with the self-interested companies (relying on Klamath).
- The Fifth Circuit reversed: it held the corollary applies to the non‑agency participants here (they qualify as consultants under Exemption 5) and remanded for the district court to decide whether the withheld documents are covered by litigation privileges (the second Exemption 5 prong).
Issues
| Issue | Jobe's Argument | NTSB's Argument | Held |
|---|---|---|---|
| Whether Exemption 5’s "consultant corollary" covers communications between NTSB and non‑agency party representatives/technical advisors | Klamath bars treating self‑interested regulated parties as "intra‑agency" consultants; communications must be disclosed | NTSB: investigations are non‑adversarial, parties are supervised and limited by regs, Klamath does not categorically bar corollary | Reversed district court — communications with Blue Hawaiian, Eurocopter, Turbomeca qualify as intra‑agency under the consultant corollary (apply Exemption 5 first prong) |
| Whether the withheld documents are protected by privileges incorporated in Exemption 5 (e.g., deliberative‑process, work product, attorney‑client) | Documents are not privileged and should be produced | Many documents are predecisional/deliberative or otherwise privileged and thus exempt | Remanded — district court must decide whether the documents fall within privileges normally available to the government in litigation (second prong of Exemption 5) |
Key Cases Cited
- Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) (held communications by self‑advocating tribes were not "intra‑agency" under Exemption 5)
- Hoover v. U.S. Dep’t of the Interior, 611 F.2d 1132 (5th Cir. 1980) (recognized consultant corollary extending Exemption 5 to outside experts assisting agency deliberations)
- Wu v. Nat’l Endowment for the Humanities, 460 F.2d 1030 (5th Cir. 1972) (same — protection for outside consultants aiding agency)
- Pub. Citizen, Inc. v. Dep’t of Justice, 111 F.3d 168 (D.C. Cir. 1997) (corollary applies when outside consultant assists agency’s deliberative process)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (Exemption 5 shields documents that would be privileged in civil discovery)
- U.S. Dep’t of Justice v. Julian, 486 U.S. 1 (1988) (discussed consultant corollary and limits where documents are routinely discoverable)
- U.S. Fish & Wildlife Serv. v. Sierra Club, 141 S. Ct. 777 (2021) (reiterated Exemption 5 incorporates privileges available to government in litigation)