922 F.3d 907
9th Cir.2019Background
- In 2014–2015 the FAA retained APTMetrics to develop and validate a Biographical Assessment (BA) used to screen Air Traffic Control Specialist applicants; APTMetrics produced summaries of validation work at the FAA’s request.
- Jorge Rojas applied in 2015, failed the 2015 BA, and submitted a FOIA request seeking information and reports concerning the BA’s empirical validation.
- The FAA located three APTMetrics-created summary documents (nine pages total), withheld them under FOIA Exemption 5 as attorney work product, and refused to search APTMetrics’ files.
- Rojas sued after administrative appeal; the district court reviewed the documents in camera and granted summary judgment to the FAA, finding the search adequate and Exemption 5 applicable.
- The Ninth Circuit reversed: it held the FAA’s in-house search was not shown reasonably calculated to find all responsive records and rejected the “consultant corollary” that treats third‑party consultant reports as intra‑agency memoranda under Exemption 5.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of FAA search | Rojas: FAA failed to conduct a reasonable search of agency records for validation materials (including underlying data) | FAA: Office of Chief Counsel attorneys reviewed their records and located responsive summaries | Court: FAA’s declarations were conclusory and omitted search details; search was not shown reasonably calculated to locate all responsive records — reversed |
| Applicability of Exemption 5 to consultant reports (consultant corollary) | Rojas: APTMetrics’ documents are third-party materials and not “inter‑ or intra‑agency memoranda” under Exemption 5 | FAA: APTMetrics acted as consultant/agent; its reports functioned as intra‑agency memoranda and are protected work product | Court: Rejected consultant corollary; Exemption 5’s text limits protection to government agency communications — Exemption 5 does not apply to these third‑party reports |
| Whether FAA must obtain documents held only by APTMetrics | Rojas: FAA should be required to retrieve underlying validation data from APTMetrics | FAA: FOIA applies only to agency records the agency has obtained or controls | Court: Followed Supreme Court precedent (Forsham/Tax Analysts): FAA not required to retrieve third‑party files it does not possess |
| Scope of remedy / remand | Rojas: Documents withheld improperly; court should order production or further search | FAA: Proper withholding and adequate procedures followed | Court: Reversed summary judgment for FAA and remanded for further proceedings consistent with (1) inadequate search finding and (2) rejection of consultant corollary |
Key Cases Cited
- Hamdan v. Dep’t of Justice, 797 F.3d 759 (9th Cir. 2015) (standard for adequacy of FOIA search)
- Zemansky v. EPA, 767 F.2d 569 (9th Cir. 1985) (search adequacy judged by reasonableness, not perfection)
- Lane v. Dep’t of Interior, 523 F.3d 1128 (9th Cir. 2008) (agency may satisfy search requirement with detailed, good‑faith affidavits)
- Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) (discusses consultant corollary but limits its application to consultants acting like agency personnel)
- United States v. Weber Aircraft Corp., 465 U.S. 792 (1984) (Exemption 5 incorporates civil discovery privileges)
- Tax Analysts v. Dep’t of Justice, 492 U.S. 136 (1989) (agency records must be created or obtained and under agency control to be subject to FOIA)
- Forsham v. Harris, 445 U.S. 169 (1980) (FOIA covers only records the agency actually obtained or controlled)
- Hickman v. Taylor, 329 U.S. 495 (1947) (work‑product doctrine protects materials prepared in anticipation of litigation)
- Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971) (origin of consultant corollary treating certain outside reports as intra‑agency memoranda)
- Lucaj v. Federal Bureau of Investigation, 852 F.3d 541 (6th Cir. 2017) (rejected consultant corollary and declined to extend Exemption 5 to outside communications)