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Rojas v. Federal Aviation Administration

United States Court of Appeals, Ninth Circuit

April 24, 2019

Jorge Alejandro Rojas, Plaintiff-Appellant,
v.
Federal Aviation Administration, Defendant-Appellee.

          Argued and Submitted June 6, 2018, Pasadena, California

          Appeal from the United States District Court for the Central District of California, D.C. No. 2:15-cv-05811-CBM-SS Consuelo B. Marshall, District Judge, Presiding,

         COUNSEL

          Michael William Pearson (argued), Curry Pearson & Wooten PLC, Phoenix, Arizona, for Plaintiff-Appellant.

          Alarice M. Medrano (argued), Assistant United States Attorney; Dorothy A. Schouten, Chief, Civil Division; United States Attorney's Office, Los Angeles, California; for Defendant-Appellee.

          Before: Kim McLane Wardlaw and Morgan Christen, Circuit Judges, and Donald W. Molloy, [*] District Judge.

         SUMMARY[**]

         Freedom of Information Act

         The panel reversed the district court's order granting summary judgment in favor of the Federal Aviation Administration ("FAA") in a case concerning a Freedom of Information Act ("FOIA") request.

         The plaintiff submitted the FOIA request after the FAA notified him that he was ineligible for an Air Traffic Control Specialist position based on his performance on a screening test called the Biographical Assessment.

         The panel held that the FAA failed to conduct a search reasonably calculated to uncover all relevant documents in response to plaintiff's FOIA request.

         The panel held that the records at issue were not "intra-agency" documents, and FOIA's Exemption 5 did not apply. Joining the Sixth Circuit, the panel rejected the consultant corollary theory, adopted by the district court and some sister circuits, which uses a functional interpretation of Exemption 5 that treats documents produced by an agency's third-party consultant as "intra-agency" memorandums.

         The panel rejected plaintiff's argument that the FAA had an obligation under FOIA to retrieve any responsive documents, such as the underlying data to the summaries.

         Judge Christen concurred in part and dissented in part. She concurred with the majority that plaintiff cannot use FOIA to access materials that the FAA does not actually possess, and that the scope of the FAA's in-house search for responsive documents was inadequate. She dissented from the majority's rejection of the consultant corollary doctrine adopted by seven sister circuits. She would adopt the corollary to shield work product generated by the government's outside consultants in anticipation of litigation.

          OPINION

          MOLLOY, District Judge

         Jorge Alejandro Rojas ("Rojas") appeals the district court's order granting summary judgment in favor of the Federal Aviation Administration ("FAA"). The case concerns a Freedom of Information Act ("FOIA") request Rojas submitted to the FAA after the FAA notified him that he was ineligible for an Air Traffic Control Specialist position based on his performance on a screening test called the Biographical Assessment ("BA"). The district court held that (1) the FAA fulfilled its FOIA obligations by conducting a reasonable search for the requested information and (2) the FAA properly withheld nine pages of summary documents pursuant to Exemption 5 as inter-agency memoranda subject to the attorney work-product doctrine. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.

         I. Background

         A. The Biographical Assessment

         In November 2012, the FAA hired Applied Psychological Techniques, Inc. ("APTMetrics"), a human resources consulting firm, to review and recommend improvements to the FAA's hiring process for Air Traffic Control Specialists.

         In 2013, APTMetrics developed the BA test to replace the FAA's existing Air Traffic Selection and Training Test. The BA is an initial screening test that determines whether an applicant possesses certain characteristics empirically shown to predict success in an Air Traffic Control Specialist position. These characteristics include flexibility, risk-tolerance, self-confidence, dependability, resilience, stress tolerance, cooperation, teamwork, and rules application. The FAA implemented the BA for the first time during the 2014 hiring cycle for Air Traffic Control Specialist applicants. In Summer and Fall 2014, the FAA revised the BA, and APTMetrics performed validation work related to the revised BA (the "2015 BA"). The 2015 BA was subsequently incorporated in the 2015 Air Traffic Control Specialist hiring process.[1]

         In November 2014, the FAA Office of the Chief Counsel asked John Scott ("Scott"), then Chief Operating Officer of APTMetrics, to create "summaries and explanations" of its validation work on the 2015 BA in anticipation of litigation on the FAA's hiring practices. Scott provided the Office of the Chief Counsel with an initial summary in December 2014 and a supplement in January 2015.

         B. Rojas's Application and FOIA Request

         In early 2015, Rojas applied for an Air Traffic Control Specialist position with the FAA. During the application process, he completed the 2015 BA. On May 21, 2015, the FAA notified Rojas that he was ineligible for a position based on his responses to the BA. Rojas's rejection notification briefly described the BA and stated that the test was "independently validated by outside experts."

         On May 24, 2015, Rojas emailed the FAA a FOIA request seeking "information regarding the empirical validation of the biographical assessment noted in [his] rejection notification [from the FAA]. This includes any report created by, given to, or regarding APTMetrics' evaluation and creation and scoring of the assessment." On June 18, 2015, the FAA, through the Office of the Chief Counsel, denied Rojas's FOIA request for documents on the empirical validation of the 2015 BA. The FAA reasoned that these records were, in part, protected as attorney work-product and therefore subject to Exemption 5 of FOIA. See 5 U.S.C. § 552(b)(5). On June 24, 2015, Rojas filed an administrative appeal contesting the FAA's denial of his FOIA request. On October 7, 2015, the FAA remanded Rojas's case to the Office of the Chief Counsel because the agency incorrectly searched for documents on the empirical validation of the 2014 BA, instead of the 2015 BA.

         Pursuant to the remand, attorneys at the Office of the Chief Counsel reviewed records on the empirical validation of the 2015 BA. They located the following three documents: (1) a summary of the Air Traffic Control Specialist hiring process, dated December 2, 2014; (2) a summary of the 2015 BA, dated January 29, 2015; and (3) a summary of the validation process and results of the 2015 BA, dated September 2, 2015. All of these records were created by APTMetrics and are identified in the FAA's[2] the second time on December 10, 2015, once again invoking Exemption 5 and the attorney work-product doctrine.

         On July 31, 2015, Rojas filed a complaint in district court, alleging that the FAA withheld information on the empirical validation of the 2015 BA in violation of FOIA. On September 21, 2016, the district court ordered the FAA to disclose the three documents identified in its Vaughn Index for in camera review. The district court granted summary judgment in favor of the FAA on November 10, 2016, holding that the three responsive records were properly withheld under Exemption 5 as attorney work-product. The court also concluded that there was no genuine dispute of material fact that the FAA adequately searched for relevant documents. Rojas timely appeals. See Fed. R. App. P. 4(a).

         II. Standard of Review

         In FOIA cases, we review de novo a district court's order granting summary judgment. Animal Legal Def. Fund, 836 F.3d at 990. Summary judgment is warranted when, viewing the evidence in the light most favorable to the non-moving party, there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Olsen v. Idaho St. Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).

         III. Discussion

         FOIA requires government agencies to "make . . . promptly available to any person," upon request, whatever "records" are possessed by the agency. 5 U.S.C. § 552(a)(3)(A). FOIA "was enacted to facilitate public access to [g]overnment documents" and "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of State v. Ray, 502 U.S. 164, 173 (1991) (citations and internal quotation marks omitted). An agency may avoid disclosure only if it proves that the requested documents fall within one of nine enumerated exemptions. See 5 U.S.C. § 552(b)(1)-(9); see also Lane v. Dep't of Interior, 523 F.3d 1128, 1137 (9th Cir. 2008). At issue on appeal is whether: (1) the FAA adequately searched for records in response to Rojas's FOIA request; (2) the FAA properly withheld three documents under Exemption 5 of FOIA, 5 U.S.C. § 552(b)(5); and (3) the FAA properly construed the scope of Rojas's FOIA request.

         A. Search for Responsive Documents[3]

         Under FOIA, an agency responding to a request must "demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents." Hamdan v. Dep't of Justice, 797 F.3d 759, 770 (9th Cir. 2015) (citation and internal quotation marks omitted). "[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate." Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985) (emphasis in original) (citation and internal quotation marks omitted). "The adequacy of the agency's search is judged by a standard of reasonableness, construing the facts in the light most favorable to the requestor." Citizens Comm'n on Human Rights v. Food & Drug Admin., 45 F.3d 1325, 1328 (9th Cir. 1995) (citation omitted). We conclude that the FAA failed to conduct a search reasonably calculated to uncover all relevant documents.

         Rojas's FOIA request sought "information regarding the empirical validation" of the BA that was described in his rejection notice, including "any report created by, given to, or regarding APTMetrics' evaluation and creation and scoring" of the BA. In response, the Office of the Chief Counsel located summaries of: (1) the Air Traffic Control Specialist hiring process; (2) the 2015 BA; and (3) the validation process and results of the 2015 BA. All of these records were created by APTMetrics.

         "[T]he government may demonstrate that it undertook an adequate search by producing reasonably detailed, nonconclusory affidavits submitted in good faith." Lane, 523 F.3d at 1139 (citation and internal quotation marks omitted). Affidavits must be "relatively detailed in their description of the files searched and the search procedures." Zemansky, 767 F.2d at 573 (internal quotation marks omitted). The agency must show that it searched for the requested records "using methods which can be reasonably expected to produce the information requested." Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990).

         The FAA's declarations did not sufficiently describe the agency's search procedures. The declaration of Yvette Armstead, the FAA's Assistant Chief Counsel, states that the agency "conducted a search for documents responsive to [Rojas]'s FOIA request" on two occasions-both initially and on remand from Rojas's administrative appeal. Armstead further explains that the search was "reasonably calculated to obtain responsive records" because attorneys at the Office of the Chief Counsel who provided legal advice on revisions to the Air Traffic Control Specialist hiring process "were asked to review their records." Attorneys located "[t]hree responsive documents" comprised of nine pages in total that "discuss[] the validation of the 2015 BA."

         Armstead's declaration is conclusory. It omits relevant details, such as names of the attorneys who searched the relevant documents and the amount of time the Office of the Chief Counsel devoted to the search. See Citizens Comm'n on Human Rights, 45 F.3d at 1328 (concluding that agency's search was adequate where its declaration stated that the agency spent over 140 hours reviewing documents in response to the plaintiff's FOIA request). The documents the FAA located included summaries of the Air Traffic Control Specialist hiring process, the 2015 BA, and the validation process and results of the 2015 BA. But summaries by necessity summarize something else; there is no indication that there was any search conducted for underlying documents. Thus, though Armstead's declaration establishes that appropriate employees were contacted and briefly describes the files that were discovered, it does not demonstrate that the FAA's search could reasonably be expected to produce the information requested-here, "information ...


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