and Submitted June 6, 2018, Pasadena, California
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,
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
Before: Kim McLane Wardlaw and Morgan Christen, Circuit
Judges, and Donald W. Molloy, [*] District Judge.
of Information Act
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.
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.
panel held that the FAA failed to conduct a search reasonably
calculated to uncover all relevant documents in response to
plaintiff's FOIA request.
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.
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.
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
MOLLOY, District Judge
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.
The Biographical Assessment
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.
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.
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.
Rojas's Application and FOIA Request
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."
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.
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 the second time on December 10, 2015, once
again invoking Exemption 5 and the attorney work-product
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).
Standard of Review
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).
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.
Search for Responsive Documents
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.
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.
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).
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."
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 ...