Court: U.S. Court of Appeals for the Ninth Circuit
Date Filed: March 5, 2020
Background: In 2015, Jorge Rojas submitted a Freedom of Information Act request to the Federal Aviation Administration seeking records related to a biographical assessment the agency relied on to reject his job application. Among the information Rojas requested were records from an “empirical validation” of the test conducted by a private consulting firm the FAA had hired.
The FAA denied Rojas’ request, arguing that the information was protected from disclosure under FOIA Exemption 5, which covers certain intra-agency communications. The FAA’s argument relies on the “consultant corollary” doctrine, which some courts have adopted to hold that communications between a government agency and its outside consultants are still “intra-agency” communications covered by Exemption 5.
Rojas filed a lawsuit against the FAA in July 2015. A few months later, the U.S. District Court for the Central District of California granted summary judgment in the FAA’s favor, holding that the records responsive to Rojas’ request were properly withheld. On appeal, a panel of judges from the Ninth Circuit Court of Appeals reversed the district court’s decision and rejected the consultant corollary, ruling that communications between the agency and the consulting firm that conducted the assessment validation were not exempt from release under FOIA.
The Ninth Circuit has granted a request from the FAA for a rehearing en banc, which will take place before eleven judges of the Ninth Circuit.
Our position: The Ninth Circuit should reject the consultant corollary and reverse the district court’s ruling that the records in question are intra-agency communications that can be withheld under Exemption 5.
- The Supreme Court has repeatedly, including as recently as last year, underscored the importance of adhering to the Act’s plain text when interpreting FOIA’s exemptions. The plain text of Exemption 5 does not support the consultant corollary.
- FOIA’s legislative history also does not support the consultant corollary.
- The Federal Advisory Committee Act further demonstrates Congress’s intent that records generated in the scope of government’s relationship with outside consultants be accessible to the public.
- The consultant corollary denies the public access to valuable records that illuminate government conduct.
Quote: “Reporters and news organizations often rely on FOIA to obtain public records that touch upon the work of agency consultants in order to inform the public about how the government conducts the public’s business. Rejecting the consultant corollary will keep records that shed light on government activity accessible to the public, enhancing the public’s understanding of how the government works.”
Related: Supported by Reporters Committee attorneys, American Management Services petitioned the Supreme Court in 2013 to review a ruling by the U.S. Court of Appeals for the Fourth Circuit that expanded the scope of consultant corollary. “The Fourth Circuit’s rule would allow agencies to broadly shield from disclosure communications it has with private third parties whenever they claimed a common interest,” the Reporters Committee wrote at the time. Ultimately, the Supreme Court did not take the case.