TONY B. JOBE, ESQUIRE, Plaintiff—Appellee, versus NATIONAL TRANSPORTATION SAFETY BOARD, Defendant—Appellant.
No. 20-30033
United States Court of Appeals for the Fifth Circuit
June 17, 2021
Before CLEMENT, HO, and DUNCAN, Circuit Judges.
Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:18-CV-10547
Aircraft disasters are investigated by a federal agency called the National Transportation Safety Board (NTSB). The inquiry usually includes representatives from the aircraft’s manufacturer or operator, who are uniquely positioned to shed light on what went wrong. This case, involving the tragic crash of a sightseeing helicopter in Hawaii, asks whether communications between the NTSB and such outside consultants must be disclosed to the public under the Freedom of Information Act (FOIA).
The district court erred. Klamath does not stand for the broad principle that a consultant’s “self-interest” always excludes it from Exemption 5. And, properly applied, the consultant corollary squarely covers the NTSB’s communications with the non-agency parties here. By necessity, the NTSB solicits technical input from entities whose aircraft are under investigation. But the process only finds facts and issues safety recommendations; it does not assign liability or have adverse parties, and its conclusions are not admissible in litigation. Moreover, the agency closely supervises non-agency parties and controls the release of any non-public information. Subjecting the NTSB’s communications with consultants to broad public disclosure would inhibit the agency’s ability to receive candid technical input from those best positioned to give it.
We therefore conclude that the outside parties solicited by the NTSB qualify as “consultants” under Exemption 5’s corollary. That does not end the case, however—deeming documents “intra-agency” is only the first step in a two-part assessment. See Klamath, 532 U.S. at 9 (“[T]he first condition
We reverse the district court’s judgment and remand for further proceedings consistent with this opinion.
I.
A.
In 2011, a helicopter crashed while on a sightseeing tour in Hawaii, killing the pilot and all four passengers. The helicopter was operated by a U.S. company, Blue Hawaiian Helicopters. It was manufactured by a French company, Eurocopter, and its engine was manufactured by another French company, Turbomeca.
Aircraft accidents are investigated by the NTSB, which conducts “fact-finding proceedings” to determine probable cause and issue safety
As part of the helicopter crash investigation, the IIC appointed party representatives from Blue Hawaiian and the Federal Aviation Administration. Under an international convention, a French agency (the “Bureau of Enquiry and Analysis for Civil Aviation Safety,” or “BEA”) served as an accredited representative. See CONVENTION ON INT’L
B.
In 2014, after the NTSB finished its investigation, Tony Jobe submitted an information request under
In 2016, Jobe submitted a second FOIA request for eleven specific categories of documents relating to the on-scene phase of the investigation. The NTSB determined it had already disclosed all releasable documents but nonetheless offered to re-review the 2,349 withheld pages. The agency ultimately released another 159 to Jobe.
Seeking additional disclosures, Jobe filed suit in the Eastern District of Louisiana. See
The district court rejected Jobe’s claims that the Vaughn index was incomplete and that the NTSB failed to segregate releasable from nonreleasable material. The court also determined that the NTSB properly invoked Exemption 5 as to several internal documents. (Jobe does not challenge those rulings on appeal.) The court, however, ruled that documents sent among the NTSB, Blue Hawaiian, Eurocopter, and Turbomeca were not “intra-agency” and so did not qualify for withholding under Exemption 5. Specifically, the court declined to apply the “consultant corollary,” which deems “intra-agency” certain communications with or materials produced by outside experts who aid in agency decision-making. See Hoover, 611 F.2d at 1137–38; Wu, 460 F.2d at 1032. The court thus
II.
We review a summary judgment de novo. Digital Drilling Data Sys., L.L.C. v. Petrolink Servs., Inc., 965 F.3d 365, 373 (5th Cir. 2020). FOIA exemptions are “exclusive” and “narrowly construed.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (citations omitted); see also Sharyland Water Supply Corp. v. Block, 755 F.2d 397, 398 (5th Cir. 1985) (Because “FOIA is designed to promote the disclosure of information . . . [,] exemptions from it are not to be read broadly.”) (citations omitted). Disclosure is strongly favored. U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). Nonetheless, “FOIA expressly recognizes that important interests are served by its exemptions, and those exemptions are as much a part of FOIA’s purposes and policies as the statute’s disclosure requirement.” Food Marketing Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019) (cleaned up); see also FBI v. Abramson, 456 U.S. 615, 630–31 (1982) (“While Congress established that the basic policy of [FOIA] is in favor of disclosure, it recognized the important interests served by the exemptions.”). The government bears the burden to prove that documents fall within an exemption. U.S. Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 141 n.3 (1989); Batton v. Evers, 598 F.3d 169, 175 (5th Cir. 2010); see also
III.
The district court concluded that neither the helicopter’s French manufacturers (Eurocopter and Turbomeca), nor the American company leasing the helicopter at the time of the crash (Blue Hawaiian), qualified as “consultants” under the corollary because they were “self-interested.” While recognizing those companies’ employees were “there to help NTSB’s
On appeal, the NTSB asserts the district court erred in refusing to apply the corollary to communications among non-agency parties to an NTSB investigation. The agency argues that its investigations are non-adversarial fact-finding proceedings and that non-agency participants are overseen by the NTSB and prohibited from disclosing non-public information absent agency approval. The agency further argues that the district court read Klamath too broadly and that the “parties” here are not “self-interested” within the meaning of that decision.
Whether the consultant corollary applies to non-agency participants in NTSB investigations is an issue of first impression in the federal circuit courts. Though a close question, we conclude that Blue Hawaiian, Eurocopter, and Turbomeca qualify as consultants. We therefore reverse the district court’s judgment and remand for the court to determine whether the withheld documents are subject to any litigation privilege.
A.
FOIA requires federal agencies to disclose documents within their control upon request, unless the documents fall within one of nine enumerated exceptions. See
This case involves the first condition and, specifically, the scope of the statutory term “intra-agency.” Every circuit to address this issue, including ours, has concluded that intra-agency communications are not limited to those between or among an agency’s employees. See Hoover, 611 F.2d at 1138 (concluding that an appraisal report, although prepared by an outside expert, was “an intra-agency memorandum within the meaning of Exemption 5” (citing Wu, 460 F.2d at 1032)).7 Rather, “intra-agency” also embraces “records of communications between an agency and outside consultants . . . if they have been created for the purpose of aiding the agency’s deliberative process.” Pub. Citizen, Inc. v. Dep’t of Just., 111 F.3d 168, 170 (D.C. Cir. 1997) (cleaned up); see also Ryan v. Dep’t of Just., 617 F.2d 781, 789 (D.C. Cir. 1980) (Exemption 5 “was created to protect the deliberative process of the government, by ensuring that persons in an advisory role would be able to express their opinions freely to agency decision-makers without fear of
much more in accord with the purpose of the provision, to regard as an intra-agency memorandum one that has been received by an agency, to assist it in the performance of its own functions, from a person acting in a governmentally conferred capacity other than on behalf of another agency—e.g., in a capacity as employee or consultant to the agency, or as employee or officer of another governmental unit (not an agency) that is authorized or required to provide advice to the agency.
Julian, 486 U.S. at 1, 18 n.1 (Scalia, J., dissenting).9 This explanation tracks our circuit’s rationale for adopting the corollary. See Wu, 460 F.2d at 1032
not be covered by Exemption 5 in any event.” Klamath, 532 U.S. at 10 n.2 (citing Julian, 486 U.S. at 11–14); see also Julian, 486 U.S. at 18 n.1 (Scalia, J., dissenting) (explaining that the “Court does not reach the issue” of whether the communications in question qualified as “‘intra-agency memorandums’ within the meaning of Exemption 5”).
B.
In finding the consultant corollary inapplicable because of the companies’ “self-interest,” the district court relied principally on Klamath. The court read that decision too broadly, however.
Klamath involved documents exchanged between the Department of the Interior and Indian tribes regarding water allocation from Oregon’s Klamath River Basin. 532 U.S. at 5. The Department was consulting with the tribes during a planning project and also representing one tribe in related litigation. Ibid. When competing water-users FOIA’d10 these documents, the Department withheld them under Exemption 5. Id. at 6. The Supreme Court held the exemption inapplicable, however. Id. at 14–16. While noting some circuits had extended the exemption to “outside consultants,” id. at 10, the Court observed that “in the typical cases . . . the consultant does not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it.” Id. at 11. The tribes, by contrast,
Klamath is distinguishable from the present case on multiple grounds. Principally, Blue Hawaiian, Eurocopter, and Turbomeca are not making “claims” that are “necessarily adverse” to those of the crash victims’ families. Id. at 14; see also id. at 12 n.4 (“[T]he intra-agency condition excludes, at the least, communications to or from an interested party seeking a Government benefit at the expense of other applicants.”) (emphasis added). Rather, their employees are participating in an investigation that is a “fact-finding proceeding[] with no adverse parties,” one that is “not conducted for the purpose of determining the rights and liabilities of any person.”
Furthermore, all parties to NTSB investigations—including companies like Eurocopter and Turbomeca appointed pursuant to an international convention—are under the control of the agency-appointed IIC. See
The district court also placed particular weight on the fact NTSB investigations do not usually (and did not in this case) include representatives of victims’ families. The court’s concern reflects commendable sympathy for these families, but it is ultimately misplaced. The NTSB does not invite victims’ representatives to participate in investigations because they are typically not experts who can “provide suitable qualified technical personnel to actively assist.”
We therefore respectfully disagree with the district court that, under Klamath, Blue Hawaiian, Eurocopter, and Turbomeca’s “self-interest” disqualifies them as consultants for purposes of Exemption 5. To be sure, Klamath contains language suggesting that self-interest of some kind may prevent outside experts from being deemed consultants. See, e.g., Klamath, 532 U.S. at 10–11 (while an outside consultant need not “be devoid of a definite point of view,” it “typical[ly] . . . does not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it”). Whatever that threshold might be, however, it has not been reached
Of course, determining whether documents are intra-agency is only the first step in applying Exemption 5. A document must also “fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Klamath, 532 U.S. at 8. Exemption 5 incorporates the various privileges which commonly shield government documents (most commonly, but not always, predecisional and/or deliberative in character) from disclosure during litigation. See Fish & Wildlife Serv, 141 S. Ct. at 783; see, e.g., Jud. Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006) (examining invocation of the deliberative process privilege in an Exemption 5 case and explaining that the
The district court suggested some of the documents at issue here would “normally . . . be exempt from disclosure.” Others it did not address. Because both facets must be satisfied for the exemption to apply, the district court should address this issue on remand. Of course, as the Supreme Court very recently reiterated, the scope of Exemption 5 is not confined to the boundaries of the deliberative process privilege. Fish & Wildlife Serv, 141 S. Ct. at 783. The district court is free on remand to consider any potentially pertinent privilege and to assess the applicability of any such privilege under the relevant test or standard that normally governs its invocation. See, e.g., Kent Corp. v. N.L.R.B., 530 F.2d 612, 618, 622-24 (5th Cir. 1976) (applying prevailing standard for attorney work product privilege and finding documents shielded from disclosure by Exemption 5).
IV.
In sum, the district court erred in concluding the documents at issue were not “intra-agency” under Exemption 5. We therefore REVERSE the court’s judgment and REMAND for further proceedings consistent with this opinion.
REVERSED and REMANDED.
This appeal concerns the proper interpretation of the Freedom of Information Act (“FOIA”)—specifically, the scope of Exemption 5, which exempts certain “inter-agency or intra-agency” communications from public disclosure.
If the terms “inter-agency” and “intra-agency” exclude anything, I would think they exclude government communications with employees of the very entity the government is trying to regulate.
No court has ever applied Exemption 5 to such communications. I have found no such case. Nor has the majority or the NTSB.
And for good reason. A communication between the regulator and the regulated—between parties with conflicting public versus private interests—is the very opposite of an internal government communication. That makes it hard to square this case with the plain text of Exemption 5. I have trouble seeing how an exchange between a government agency and the employee of a company with an interest in the outcome of that agency’s actions can possibly constitute an “inter-agency or intra-agency” communication.
Indeed, the Supreme Court found precisely the opposite in Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001). There the Court assumed, without deciding, that Exemption 5 would apply to a bona fide government consultant—but pointedly noted that a “consultant does not represent an interest of its own.” Id. at 11. “Its only obligations are to truth and its sense of what good judgment calls for, and in those respects the consultant functions just as an employee would be expected to do.” Id.
Communications involving an interested party, by contrast, would not be subject to Exemption 5, according to Klamath. As the Court observed, “this fact alone”—that is, the fact that the purported consultant has its
That same logic readily applies here. Eurocopter and Turbomeca are private companies with a clear interest in the NTSB conducting its investigation in a manner favorable to their private corporate interests. They have an interest, for example, in steering the NTSB away from making any statements or reaching any conclusions that might support litigants who are either currently adverse to the companies, or may someday be in the future—such as the families of the crash victims represented by Jobe, the requestor here.
Tellingly, in the case cited by the NTSB as the most supportive of its position, the court concluded that the private party there had no interest separate and apart from the agency, and was therefore subject to Exemption 5. See McKinley v. Bd. of Governors of Fed. Reserve, 647 F.3d 331, 337 (D.C. Cir. 2011) (quoting Klamath, 532 U.S. at 11) (“[the [Federal Reserve Bank of New York] ‘[did] not represent an interest of its own, or the interest of any other client, when it advise[d] the [Board]’ on the Bear Stearns loan.”). Not surprisingly, the majority does not rely on McKinley.
Finally, I do not question the sincerity of the NTSB when it says it designates certain employees of regulated companies to serve the public interest, in a kind of secondment to the agency—and not to further the private interest of their employers. I acknowledge the various steps the agency takes to insulate itself from being captured by industry interests as a result of its investigatory methods. I agree with the majority that these party representatives may be bound by all manner of regulatory strictures.
But that just proves my point: Those regulations and restrictions are necessary precisely because these employees remain on the payroll of the regulated companies and expect to return to their employers when their secondments are completed. So they obviously have an interest in the agency’s work. It would be pure fiction for a government agency like the NTSB to expect these designated private employees to ignore their sense of loyalty and duty to their employers. To the contrary, that’s why the agency needs regulations to try to mitigate the impact of the employees’ contrary interests. But of course, those regulations don’t actually eliminate those interests. Because they can’t—nothing can change the fact that the employees work for interested companies. And nothing in FOIA directs courts to pretend otherwise.
What’s more, as the NTSB acknowledges, company experts are seconded to the agency, not to work on safety issues generally, but to work on
To be sure, the NTSB may well have a strong argument that designated experts employed by interested companies like Eurocopter and Turbomeca should be exempt from FOIA. The agency may be right that such an exemption would help maximize the quantity and quality of the information available to the agency about a safety incident like the tragic helicopter crash at issue in this appeal.
But that is a policy decision for Congress to make, not this court. Under the plain text of Exemption 5, I see no basis for extending the consultant corollary to the interested regulated entities who participate in an NTSB investigation. Nor am I aware of any judicial decision that would warrant such an extension here.
* * *
Open government is a founding principle of our country. As James Madison, the father of our Constitution, once wrote, “a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” Letter from James Madison to W.T. Barry (Aug. 4, 1822), in THE JAMES MADISON PAPERS AT THE LIBRARY OF CONGRESS, 1723–1859: Series 1, General Correspondence.2
It was this spirit that gave rise to the adoption of FOIA on July 4, 1966. See Pub. L. No. 89-487, 80 Stat. 250 (1966). FOIA offers every American
Accordingly, the Supreme Court has repeatedly held that exemptions under FOIA are exclusive and must be narrowly construed. See, e.g., Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976); Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). “Consistent with the Act’s goal of broad disclosure, these exemptions have been consistently given a narrow compass.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989). See also FBI v. Abramson, 456 U.S. 615, 630 (1982) (“FOIA exemptions are to be narrowly construed.”).
Applying this established principle of interpretation to the plain meaning of “intra-agency” communications, I would hold that government communications with the employees of regulated parties fall squarely outside of Exemption 5, and therefore subject to the disclosure mandates of FOIA. I agree with the district court that Exemption 5 does not apply to the documents at issue in this appeal and would therefore affirm. The majority disagrees. Accordingly, I very respectfully dissent.