Jorge Rojas v. Faa, 941 F.3d 392

Background

In 2014 the FAA replaced prior screening for air traffic controllers with a confidential, unproctored 62-question Biographical Assessment used to qualify applicants; passing was required to advance to the AT‑SAT.
Jorge Rojas failed the Biographical Assessment, then sought (FOIA and Privacy Act) the minimum passing score, his own score, and emails/chats involving FAA employee Shelton Snow after reports of leaked test answers and possible misconduct.
The FAA produced many records but withheld: the test scoring information (invoking FOIA Exemption 2 and Privacy Act Exemption (k)(6)); redacted personal email addresses under FOIA Exemption 6; and withheld 202 emails as not being agency records.
The district court granted summary judgment to the FAA; Rojas appealed challenging the withholdings and non‑agency determinations.
The Ninth Circuit affirmed withholding of scores and application of (k)(6), found some recipient identities should be disclosed despite privacy concerns, and vacated/remanded the withheld‑emails (agency‑records) ruling for further analysis.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are the minimum passing Biographical Assessment score and Rojas’s individual score subject to disclosure under FOIA Exemption 2 and the Privacy Act?	Scores are not merely internal "personnel rules" and the minimum score is not "information about an individual."	Scores reflect internal scoring/selection practices (Exemption 2) and are testing material disclosure of which would compromise fairness (Privacy Act (k)(6)).	Affirmed: Exemption 2 covers internal scoring practices; (k)(6) bars disclosure because scores could enable cheating and compromise test objectivity.
Were FAA employees’ personal email addresses properly redacted under FOIA Exemption 6?	Addresses are needed to trace internal communications about hiring misconduct; public interest outweighs privacy.	Employees have a nontrivial privacy interest; many personal addresses are unrelated to agency business.	Mixed: Court found a cognizable privacy interest but held public interest outweighed privacy for recipients of the Barrier Analysis; FAA may identify recipients by name rather than disclose personal addresses.
Were the 202 withheld emails "agency records" subject to FOIA?	Emails on FAA servers and sent to/from an FAA account are agency records.	Many withheld emails were personal, union, or non‑agency communications not in the agency’s control.	Vacated and remanded: the district court failed to apply Tax Analysts’ control inquiry properly; further factfinding and analysis required on whether each email was in agency control for official business.
Did FAA meet its burden for FOIA/Privacy Act withholdings at summary judgment?	FAA’s declarations/specifications insufficient to justify broad withholding.	FAA provided affidavits and a Vaughn index showing exemptions and risks to test integrity.	Affirmed in part (scores and certain redactions), reversed in part and remanded (agency‑record determinations); overall mixed outcome.

Key Cases Cited

U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989) (establishes two‑prong test for "agency records": creation/obtaining and agency control at time of request)
Milner v. Dep’t of Navy, 562 U.S. 562 (2011) (construes FOIA Exemption 2 terms "solely," "internal," and "personnel rules and practices")
Kissinger v. Reporters Comm. for Freedom of Press, 445 U.S. 136 (1980) (personal materials not converted into agency records absent agency control/use)
Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004) (requester must show more than bare suspicion to overcome privacy interest in disclosure of purported official misconduct)
U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595 (1982) ("similar files" under Exemption 6 includes government records identifiable to individuals)
U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989) (privacy interest includes individual control of personal information; frames public‑interest balancing for FOIA)
Elec. Frontier Found. v. Office of the Dir. of Nat’l Intelligence, 639 F.3d 876 (9th Cir. 2010) (discusses strong public interest in identifying parties influencing agency action and limits on Exemption 6)
Yonemoto v. Dep’t of Veterans Affairs, 686 F.3d 681 (9th Cir. 2012) (recognizes nontrivial privacy interests under Exemption 6)