No.

21-

IN THE
Supreme Court of the United States
________________

JORGE ALEJANDRO ROJAS,

Petitioner,
v.
FEDERAL AVIATION ADMINISTRATION,
Respondent.
________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________

PETITION FOR A WRIT OF CERTIORARI

________________

Robert M. Loeb Naomi J. Scotten

Thomas M. Bondy Counsel of Record
Karim J. Kentfield Abigail Colella
Monica Haymond ORRICK, HERRINGTON &
ORRICK, HERRINGTON & SUTCLIFFE LLP
SUTCLIFFE LLP 51 West 52nd Street
1152 15th Street, NW New York, NY 10019
Washington, DC 20005 (212) 506-5000
nscotten@orrick.com

Counsel for Petitioner

 i

QUESTION PRESENTED

Exemption 5 of the Freedom of Information Act

provides that federal agencies need not release privi-
leged “inter-agency or intra-agency memorandums or
letters.” 5 U.S.C. § 552(b)(5).

Seven courts of appeals have interpreted the

phrase “intra-agency . . . memorandums or letters” to
include a “consultant corollary,” shielding from disclo-
sure documents drafted by private, outside parties
and sent to federal agencies. One court of appeals has
rejected this atextual approach.

The question presented is: Whether the Ninth

Circuit, in a sharply divided en banc decision, erred
by adopting the consultant corollary and holding that
“intra-agency memorandums or letters” in FOIA’s Ex-
emption 5 encompasses documents prepared by APT-
Metrics, a private, outside consultant.
 ii

RELATED PROCEEDINGS

United States Court of Appeals for the Ninth Circuit:

Rojas v. FAA, No. 17-55036 (9th Cir. June 18, 2019)

(panel opinion amending and superseding opinion
issued Apr. 24, 2019)

Rojas v. FAA, No. 17-55036 (9th Cir. Mar. 2, 2021) (en

banc opinion and judgment)

United States District Court for the Central District

of California:

Rojas v. FAA, No. 2:15-cv-05811 (C.D. Cal. Nov. 10,

2016) (granting summary judgment)
 iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................ i

RELATED PROCEEDINGS ..................................... ii
TABLE OF AUTHORITIES ......................................v
INTRODUCTION ..................................................... 1
OPINIONS AND ORDERS BELOW ........................ 3
JURISDICTION ........................................................ 4
STATUTORY PROVISIONS INVOLVED ............... 4
STATEMENT OF THE CASE .................................. 5
APTMetrics, an outside consultant,
develops a personality test to screen
air traffic controller applicants..................... 5
The FAA represents that the personality
test has been validated. ................................ 6
Mr. Rojas applies for an air traffic
controller position and is rejected
based on the personality test. ....................... 7
Mr. Rojas files suit under FOIA and the
district court grants summary
judgment for the FAA. .................................. 9
The Ninth Circuit panel reverses,
rejecting the consultant corollary. ................ 9
A sharply divided en banc court grants
rehearing and adopts the consultant
corollary. ...................................................... 10
 iv

REASONS FOR GRANTING THE WRIT.............. 13

I. The Courts Of Appeals Are Split About
Whether Exemption 5 Includes A
Consultant Corollary. ....................................... 13
II. The Court Should Grant Certiorari To
Restore Exemption 5’s Plain Meaning............. 17
A. The consultant corollary is contrary to
the statutory text. ....................................... 18
B. Exemption 5’s purpose is consistent
with its plain meaning. ............................... 24
III. This Case Presents An Issue Of Recurring
Significance In Need Of This Court’s
Resolution. ........................................................ 30
IV. This Case Is An Ideal Vehicle To Resolve
The Question Presented. .................................. 37
CONCLUSION ........................................................ 39
APPENDIX A Opinion of the En Banc Ninth
Circuit (March 2, 2021) ................. 1a
APPENDIX B Opinion of the Ninth Circuit
(June 18, 2019) ............................ 70a
APPENDIX C Order of the United States
District Court for the Central
District of California
(November 10, 2016) ................. 113a
APPENDIX D 5 U.S.C. § 552 ............................ 132a
 v

TABLE OF AUTHORITIES

Page(s)

Cases

Consumer Prod. Safety Comm’n v. GTE

Sylvania, Inc.,
447 U.S. 102 (1980)..............................................29

Dep’t of Interior v. Klamath Water Users

Protective Ass’n,
532 U.S. 1 (2001).... 3, 14, 15, 19, 21, 25, 27, 34, 35

DOJ v. Julian,
486 U.S. 1 (1988)................................ 11, 20, 21, 33

Food Mktg. Inst. v. Argus Leader

Media,
139 S. Ct. 2356 (2019).............. 1, 18, 19, 24, 26, 35

Gov’t Land Bank v. GSA,

671 F.2d 663 (1st Cir. 1982) ................................14

Guerrero-Lasprilla v. Barr,
140 S. Ct. 1062 (2020)..........................................27

Hunton & Williams v. DOJ,

590 F.3d 272 (4th Cir. 2010)..........................15, 33

Jobe v. Nat’l Transp. Safety Bd.,

1 F.4th 396 (5th Cir. 2021) ...................... 32, 34, 35

Lead Indus. Ass’n v. Occupational

Safety & Health Admin.,
610 F.2d 70 (2d Cir. 1979) ....................... 14, 32, 34
 vi

Lucaj v. FBI,
852 F.3d 541 (6th Cir. 2017)................ 2, 16, 17, 31

Milner v. Dep’t of Navy,

562 U.S. 562 (2011).................. 1, 17, 18, 25, 28, 31

Nat’l Inst. of Mil. Just. v. U.S. Dep’t of

Def.,
512 F.3d 677 (D.C. Cir. 2008) ........................23, 32

NLRB v. Sears, Roebuck & Co.,

421 U.S. 132 (1975)..............................................34

Pub. Citizen, Inc. v. DOJ,

111 F.3d 168 (D.C. Cir. 1997) ..............................34

Renegotiation Bd. v. Grumman Aircraft

Eng’g Corp.,
421 U.S. 168 (1975)..............................................23

Rojas v. FAA,
941 F.3d 392 (9th Cir. 2019)..........................5, 6, 7

Ryan v. DOJ,
617 F.2d 781 (D.C. Cir. 1980) ........................14, 35

Soucie v. David,
448 F.2d 1067 (D.C. Cir. 1971) ......................13, 38

Stewart v. U.S. Dep’t of Interior,

554 F.3d 1236 (10th Cir. 2009).......... 15, 31, 32, 34

U.S. Dep’t of Just. v. Tax Analysts,

492 U.S. 136 (1989)........................................24, 25
 vii

U.S. Fish & Wildlife Serv. v. Sierra

Club, Inc.,
141 S. Ct. 777 (2021)............................................33

United States v. Weber Aircraft Corp.,

465 U.S. 792 (1984)........................................27, 34

Wu v. Nat’l Endowment for Humans.,

460 F.2d 1030 (5th Cir. 1972)..............................14

Yee v. City of Escondido,

503 U.S. 519 (1992)..............................................37

Statutes

5 U.S.C. § 551(1)..................................................10, 19

5 U.S.C. § 552 ..............................................................4

5 U.S.C. § 552(a)(4)(B) ..............................................23

5 U.S.C. § 552(b)(4) ...................................................22

5 U.S.C. § 552(b)(5) ......................... 2, 9, 13, 16, 18, 23

5 U.S.C. § 552(b)(8) ...................................................22

5 U.S.C. § 552(f) ........................................................19

5 U.S.C. § 552(f)(1) ....................................................10

28 U.S.C. § 1254(1)......................................................4

Other Authorities

33 Charles A. Wright, Federal Practice

& Procedure § 8441 (1st ed.)................................33
 viii

A Review of the FAA’s Air Traffic

Controller Hiring, Staffing, and
Training Plans: Hearing Before the
H. Subcomm. on Aviation, 114th
Cong. (2016) (Statement of Rep.
LoBiondo),
https://tinyurl.com/yyd3cw35 ..........................7, 36

Black’s Law Dictionary (rev. 4th ed.

1968) .....................................................................19

H.R. Rep. No. 89-1497 (1966) ...................................26

Report: Disposition of FOIA Requests –

Number of Times Exemptions
Applied (2020), https://tinyurl.com/
6wsmsprs .............................................................34

S. Rep. No. 88-1219 (1964)........................................26

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of
Legal Texts (2012) ................................................27

Stephen M. Shapiro et al., Supreme

Court Practice (10th ed. 2013) .............................31

Webster’s Seventh New Collegiate Dictionary

(1961) ....................................................................19
 INTRODUCTION

Federal agencies must disclose their records un-

der the Freedom of Information Act, unless those rec-
ords fit into a set of narrowly drawn exemptions. In
the 1970’s and 80’s, circuit courts began engrafting
atextual terms onto these exemptions, in a purpose-
driven effort to reach desired outcomes. This Court
has rejected that “text-light approach,” Milner v. De-
partment of Navy, 562 U.S. 562, 573 (2011), as “a relic
from a ‘bygone era of statutory construction,’” Food
Marketing Institute v. Argus Leader Media, 139 S. Ct.
2356, 2364 (2019).

Despite this Court’s clear prohibition of this prac-

tice, seven circuit courts have done it again—this
time, adding a “consultant corollary” to the text of Ex-
emption 5. Exemption 5 allows federal agencies to
withhold privileged “intra-agency” documents. The
consultant corollary is a judicially created rule that
allows federal agencies to shield from disclosure doc-
uments authored by private, external consultants—
simply by labeling that work “intra-agency.”

The corollary arose out of 1970’s-era dicta in a

D.C. Circuit footnote that contained no textual analy-
sis whatsoever. As in Argus Leader and Milner, other
circuits reflexively fell in line. As of today, seven cir-
cuits have adopted the “consultant corollary,” deem-
ing private, outside contractors’ work “intra-agency”
for purposes of FOIA Exemption 5.

The Sixth Circuit disagrees, finding no basis to

read “intra-agency” to encompass documents created
by outsiders. The court explained that Congress chose
 2

to limit Exemption 5’s reach to “inter-agency or intra-

agency memorandums or letters,” 5 U.S.C.
§ 552(b)(5), not to “memorandums or letters among
agencies, independent contractors, and entities that
share a common interest with agencies.” Lucaj v. FBI,
852 F.3d 541, 549 (6th Cir. 2017) (emphasis added).

A three-judge panel of the Ninth Circuit in this

case agreed with the Sixth Circuit and rejected the
consultant corollary. However, the Ninth Circuit
granted en banc review at the Government’s request.
A sharply divided court held that the term “intra-
agency” includes the work of an independent, outside
consultant. The en banc majority openly acknowl-
edged that the consultant corollary was not “the most
natural” reading of the text, Pet. App. 13a, but be-
lieved that reading the Exemption to include inde-
pendent contractors was necessary to achieve the
perceived purpose of the statute.

Judge Bumatay dissented in relevant part, criti-

cizing the majority position as a “judicial rewrite” jus-
tified by “purpose all the way down.” Pet. App. 58a.
He explained that the majority’s interpretation was
not “derived from the text of Exemption 5 or frankly
any other legislation.” Pet. App. 67a. And he warned
that elevating “perceived legislative purpose” over
statutory language is not just misguided in terms of
divining Congress’ intent; it is a “threat to the sepa-
ration of powers” and a serious usurpation of the
court’s “limited judicial role.” Pet. App. 62a, 66a.
Judge Wardlaw, joined by two other judges, also dis-
sented in relevant part, explaining that the text of Ex-
emption 5 is “crystal clear: documents or
 3

communications exchanged with outside consultants

do not fall within that exemption.” Pet. App. 39a.

In Department of Interior v. Klamath Water Users

Protective Association, 532 U.S. 1 (2001), this Court
rejected the most extreme version of the consultant
corollary—finding that “communications to or from
an interested party seeking a Government benefit at
the expense of other applicants” could not possibly
qualify as “intra-agency.” Id. at 12 n.4. But the cir-
cuits diverge sharply about Klamath’s broader impli-
cations: the Sixth Circuit reasoned that Klamath
rejected the corollary; the Tenth Circuit ruled that
Klamath embraced the corollary; and the Ninth Cir-
cuit found that Klamath left the question open. Add-
ing to the confusion, even courts adopting the
corollary have applied inconsistent tests.

With the split en banc decision here, this im-

portant issue regarding the scope of Exemption 5 is
now ripe for this Court’s review. This Court should
grant certiorari, restore the plain meaning of the text,
and reject the consultant corollary.

OPINIONS AND ORDERS BELOW

The opinion of the en banc Ninth Circuit is re-

ported at 989 F.3d 666 and reproduced at Pet. App.
1a-69a. The Ninth Circuit panel opinion is reported at
927 F.3d 1046 and reproduced at Pet. App. 70a-112a.
The district court’s decision is unreported and repro-
duced at Pet. App. 113a-131a.
 4

JURISDICTION

The Ninth Circuit entered judgment on March 2,

2021. Pet. App. 1a. This Court has jurisdiction under
28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

In relevant part, the Freedom of Information Act,

5 U.S.C. § 552, provides:

(a) Each agency shall make available to the public in-

formation as follows:
***
(3)(A) *** each agency, upon any request for
records which (i) reasonably describes such
records and (ii) is made in accordance with
published rules stating the time, place, fees
(if any), and procedures to be followed, shall
make the records promptly available to any
person.

***
(b) This section does not apply to matters that are—
***
(5) inter-agency or intra-agency memoran-
dums or letters that would not be available
by law to a party other than an agency in lit-
igation with the agency, provided that the
deliberative process privilege shall not apply
to records created 25 years or more before
the date on which the records were re-
quested;

***
 5

STATEMENT OF THE CASE

APTMetrics, an outside consultant, develops

a personality test to screen air traffic controller
applicants.

As detailed in a related FOIA case also brought by

petitioner, to manage the nation’s civil airspace, the
FAA “retains more than 14,000 air traffic control spe-
cialists who work around the clock, communicating
with pilots, monitoring the flow of airplanes, and
maintaining safe airways for 2.7 million passengers
who fly each day.” Rojas v. FAA, 941 F.3d 392, 398
(9th Cir. 2019).1 The job is “among the highest pres-
sure jobs in America.” Id.

Historically, the FAA filled those positions based

on candidates’ relevant skill sets and education. Ap-
plicants took the Air Traffic Selection and Training
examination (AT-SAT), “a proctored, eight-hour ex-
amination that tested cognitive skills related to work-
ing as an air traffic controller.” Id. Individuals with
high AT-SAT scores and an aviation degree from an
FAA-accredited school were placed on a Qualified Ap-
plicant Register that allowed them to apply for air
traffic controller job openings. Id.

In 2014, however, the FAA “significantly changed

its hiring system in order to recruit more diverse can-
didates.” Id. In anticipation of a hiring surge, the FAA
announced that it would place less emphasis on the

1 The cited decision involved the same employment test at

issue in this case, detailed further below. That decision resolved

different legal issues concerning separate FOIA requests.
 6

skills-based AT-SAT—which it determined had im-

peded diversity in the agency. The FAA also “elimi-
nated the approximately 3,000 existing applicants
from its Qualified Applicant Register.” Id.

The FAA hired an outside consultant, Applied

Psychological Techniques, Inc., also known as APT-
Metrics, to review and ostensibly improve the
agency’s air traffic controller hiring processes. Pet.
App. 8a. APTMetrics’ solution was to create a new,
personality-based test called the Biographical Assess-
ment, to serve as the initial screening mechanism for
air traffic controller applicants. Pet. App. 73a-74a.
This computerized test—developed for use in 2014
and revised in 2015—sought to measure attributes
like “self-confidence, stress tolerance, and teamwork.”
Pet. App. 7a-8a. Applicants with enough “correct” an-
swers would move forward in the hiring process and
take the AT-SAT. Rojas, 941 F.3d at 399.

The FAA represents that the personality test

has been validated.

Controversy quickly ensued. “[O]ne news network

reported (after a six-month investigation) that an
FAA employee . . . was leaking Biographical Assess-
ment answers to student members” of a group he be-
longed to. Rojas, 941 F.3d at 399. “In June 2014, ten
members of Congress sent a letter to the FAA express-
ing concerns [about the test] and asking for infor-
mation, including ‘metrics on how the new hiring
process has enhanced aviation safety overall.’” Id. at
400. “[F]ourteen members of Congress sent a follow-
up letter asking the FAA to investigate the report of
possible cheating.” Id. (quotation marks omitted).
 7

Senator Kelly Ayotte sought additional information

about the process in July 2015. C.A. doc. 21-2 at 126-
31 (Supp. Excerpts of Record). And “a member of the
U.S. Commission on Civil Rights expressed concerns
that the FAA’s new hiring procedures discriminated
on the basis of race against applicants in the prior
pool.” Rojas, 941 F.3d at 400.

Ultimately, the House Subcommittee on Aviation

held a hearing about the FAA’s 2014 and 2015 ver-
sions of the Biographical Assessment. See A Review of
the FAA’s Air Traffic Controller Hiring, Staffing, and
Training Plans: Hearing Before the H. Subcomm. on
Aviation, 114th Cong. 2-3 (2016) (Statement of Rep.
LoBiondo), https://tinyurl.com/yyd3cw35 (hereinafter
“Subcomm. Hearing”). A major question was whether
the Biographical Assessment had been appropriately
“validated”—meaning that passing scores had been
statistically shown to predict workplace success. Id.
at 8. The FAA insisted that its “consultants have done
the validation work.” Id. at 21; see Pet. App. 51a
(Thomas, J., concurring in part and dissenting in
part) (“[T]he FAA has repeatedly confirmed that both
the 2014 and 2015 biographical assessments had been
validated.”). But the underlying validation studies
were never made public.

Mr. Rojas applies for an air traffic controller

position and is rejected based on the personality
test.

Jorge Rojas was nearing graduation from an FAA-

approved air traffic control training program when
the agency changed its hiring process. Pet. App. 73a-
74a. He applied for an entry-level air traffic controller
 8

position in early 2015 and, as part of the application

process, took the Biographical Assessment. Pet. App.
75a.

The FAA deemed Mr. Rojas unsuitable under the

new personality criteria. In its rejection notice, it
stated that Mr. Rojas was “NOT eligible” for the posi-
tion based on his test responses. Pet. App. 8a. Con-
sistent with the FAA’s later representations to
Congress, the notice asserted that the Biographical
Assessment was “independently validated by outside
experts.” Id.

Seeking more information about the claimed val-

idation, Mr. Rojas filed a FOIA request with the FAA.
He sought “information regarding the empirical vali-
dation of the biographical assessment,” including
“any report created by, given to, or regarding APT-
Metrics’ evaluation and creation and scoring of the as-
sessment.” Pet. App. 9a.

The FAA denied the request. It withheld respon-

sive documents under Exemption 5, which applies to
privileged “inter-agency” and “intra-agency” records.
Pet. App. 9a. Mr. Rojas filed an administrative ap-
peal, at which point the agency realized it had mis-
takenly searched for documents related to the 2014
Biographical Assessment rather than the 2015 ver-
sion Mr. Rojas had referenced. Pet. App. 75a. The
FAA conducted a new search and identified three re-
sponsive documents—summaries of the test, of the
test validation, and of the hiring process. Pet. App.
75a-76a. The FAA withheld all three summaries un-
der Exemption 5. Pet. App. 76a. It asserted that APT-
Metrics created each document at the FAA’s request,
 9

in response to potential litigation about the Biograph-

ical Assessment, and that the documents were “intra-
agency” under Exemption 5. Id.

Mr. Rojas files suit under FOIA and the dis-

trict court grants summary judgment for the
FAA.

Mr. Rojas sued under FOIA to compel disclosure.

Pet. App. 113a-114a. The district court granted sum-
mary judgment for the FAA. Pet. App. 131a. It
deemed the requested records exempt from disclo-
sure, noting that “courts have upheld the application
of FOIA Exemption 5 to materials composed and sup-
plied by outside contractors.” Pet. App. 123a.2

The Ninth Circuit panel reverses, rejecting

the consultant corollary.

A Ninth Circuit panel reversed, rejecting the con-

sultant corollary. It explained that “[b]y its plain
terms, Exemption 5 applies only to records that the
government creates and retains.” Pet. App. 81a.

Exemption 5’s threshold requirement, the panel

explained, is that the documents are “inter-agency or
intra-agency memorandums or letters.” Pet. App. 81a
(quoting 5 U.S.C. § 552(b)(5)). And FOIA expressly

2 The district court also concluded that the search for re-

sponsive documents was adequate and that all three withheld

records—purportedly prepared in anticipation of litigation alleg-
ing that the “biographical assessment resulted in discriminatory
hiring practices”—were privileged as attorney work product,
though not covered by the attorney-client privilege. Pet. App.
118a-20a, 123a-30a; see Pet. App. 95a.
 10

defines the word “agency” as an “authority of the Gov-

ernment of the United States.” Pet. App. 83a (quoting
5 U.S.C. §§ 551(1), 552(f)(1)). APTMetrics, a private
contractor, is “not a government agency” under the
statute’s definition, so documents exchanged between
it and the FAA cannot be “inter-agency or intra-
agency” records. Pet. App. 82a, 91a.

The panel acknowledged that other circuits had

adopted a so-called “consultant corollary” that “treats
documents produced by an agency’s third-party con-
sultant as ‘intra-agency’” records. Pet. App. 81a. But
those decisions rested on “shaky foundation[s]” and
made little effort to reconcile their “functional inter-
pretation” with the terms of the statute. Pet. App.
81a, 87a. In contrast, the panel explained, the Sixth
Circuit “explicitly rejected the consultant corollary as
contrary to Exemption 5’s plain text and the mandate
to construe FOIA’s exemptions narrowly.” Pet. App.
90a. The panel declined to adopt the doctrine on the
same basis, explaining that such an interpretation
would “contravene[] Exemption 5’s plain language” as
well as FOIA’s purpose of broad disclosure. Pet. App.
83a. Judge Christen dissented. Pet. App. 94a-112a.

A sharply divided en banc court grants re-

hearing and adopts the consultant corollary.

The Ninth Circuit granted the FAA’s petition for

rehearing en banc. Pet. App. 12a. In a split decision,
the en banc court adopted the consultant corollary to
Exemption 5.

The majority opinion, authored by Judge Watford,

acknowledged that “‘the most natural meaning’” of
 11

“intra-agency memorandum” is “‘a memorandum that

is addressed both to and from employees of a single
agency.’” Pet. App. 13a (quoting DOJ v. Julian, 486
U.S. 1, 18 n.1 (1988) (Scalia, J., dissenting)). But it
posited that the phrase “could just as plausibly be
read to include certain outside consultants whom the
agency has hired to work in a capacity functionally
equivalent to that of an agency employee.” Pet. App.
13a-14a.

The majority chose between the “two interpreta-

tions” by looking to the Exemption’s “purposes”—es-
pecially its goal of encouraging the free exchange of
ideas in the policymaking process. Pet. App. 14a. Be-
cause “[o]utside consultants would presumably be
just as hesitant as agency employees to engage in
frank discussion” if their advice could be made public,
the court reasoned, Congress could not have intended
to “limit[] Exemption 5’s coverage to communications
authored by agency employees.” Pet. App. 15a. On
that basis, the majority held that outside consultants
are “‘within’ an agency for purposes of Exemption 5”
if they “acted in a capacity functionally equivalent to
that of an agency employee in creating the . . . docu-
ments the agency seeks to withhold.” Pet. App. 17a-
18a. APTMetrics’ work—produced as a private, out-
side consultant—was therefore deemed “intra-
agency.” Pet. App. 18a-19a.3

3 The majority reversed the district court on the adequacy

of the search and reversed in part on privilege. It held that the

FAA’s declarations failed to demonstrate that the search for re-
sponsive documents was adequate, and failed to show that one
of the three documents was privileged. Pet. App. 19a-24a. Those
 12

Judge Collins joined the majority but wrote sepa-

rately to note his view that the “context” of Exemption
5, including its “purpose” of incorporating civil discov-
ery privileges, supports the consultant corollary. Pet.
App. 31a-32a.

Judge Wardlaw, joined by Chief Judge Thomas

and Judge Hurwitz, dissented in relevant part. Pet.
App. 35a. Judge Wardlaw emphasized that statutory
interpretation must start with the text and that this
text is clear: “intra” means “within,” and FOIA explic-
itly defines “agency” as “‘each authority of the Gov-
ernment of the United States.’” Pet. App. 36a-38a.
Nothing about this renders a document authored by a
person outside the agency “intra-agency.” Id. Judge
Wardlaw added that, even if there were “two equally
plausible readings,” the tie must go to disclosure. Pet.
App. 44a.

Judge Wardlaw traced the development of the

“consultant corollary” in the courts of appeals, observ-
ing that “[a]s in Milner and Argus Leader,” this is a
situation where an atextual doctrine spread through
“judicial inertia” without any “meaningful analysis of
[FOIA’s] text or structure.” Pet. App. 40a, 43a. “Only
the Sixth Circuit,” Judge Wardlaw explained, “has
bucked the . . . trend and, at the least, cast serious
doubt on whether the consultant corollary can be
found in Exemption 5’s text.” Pet. App. 42a.

Chief Judge Thomas joined Judge Wardlaw’s dis-

sent in full, and also wrote separately to note that,

questions, which were remanded to the district court, are not at

issue in this petition.
 13

“even if the consultant corollary could be grafted onto

Exemption 5, it would not protect the information Ro-
jas sought in his FOIA request,” because the agency
had an independent legal obligation to make valida-
tion studies available to the public. Pet. App. 52a.

Judge Bumatay separately dissented in relevant

part. He decried the majority’s purpose-driven “judi-
cial rewrite” of Exemption 5. Pet. App. 58a. “While
[the majority’s] test might make normative sense,”
Judge Bumatay explained, “none of it is derived from
the text of Exemption 5 or frankly any other legisla-
tion.” Pet. App. 66a-67a. And elevating “perceived leg-
islative purpose” over statutory language “subvert[s]
any legislative compromise baked into [the] enacted
text” and is a “threat to the separation of powers.” Pet.
App. 62a, 65a-66a.

REASONS FOR GRANTING THE WRIT

I. The Courts Of Appeals Are Split About

Whether Exemption 5 Includes A Consultant
Corollary.

The circuits are split regarding whether courts

should engraft a “consultant corollary” onto the plain
text of FOIA’s Exemption 5. This Exemption allows
an agency to shield from disclosure privileged “inter-
agency” or “intra-agency” documents. 5 U.S.C.
§ 552(b)(5). The corollary first arose in purpose-driven
dicta in a footnote in a 1970’s-era D.C. Circuit opinion,
which suggested that the term “intra-agency” should
include private contractors’ work. Soucie v. David,
448 F.2d 1067, 1078 n.44 (D.C. Cir. 1971) (hypothe-
sizing that a consultant corollary might be justified by
 14

an agency’s “special need” for outside consultants’

opinions).

The Fifth and Second Circuits quickly adopted

that position, providing no textual analysis of their
own. See Wu v. Nat’l Endowment for Humans., 460
F.2d 1030, 1032 (5th Cir. 1972) (relying on Soucie);
Lead Indus. Ass’n v. Occupational Safety & Health
Admin., 610 F.2d 70, 83 (2d Cir. 1979) (“[W]e have
nothing that can usefully be added to Chief Judge Ba-
zelon’s statement in Soucie.”). Then, buttressed by
these other circuits, the D.C. Circuit adopted its ear-
lier dicta in Soucie as binding law, reasoning circu-
larly that the consultant corollary was a “common
sense interpretation” of Exemption 5 that “has been
consistently followed by the courts.” Ryan v. DOJ, 617
F.2d 781, 790 (D.C. Cir. 1980). The First Circuit,
thereafter, simply followed suit with no analysis of its
own. Gov’t Land Bank v. GSA, 671 F.2d 663, 665 (1st
Cir. 1982) (noting that parties agreed that an inde-
pendent contractor’s work was intra-agency).

In 2001, this Court considered the consultant cor-

ollary, but it did not resolve the question presented
here. The Department of the Interior argued that it
could withhold its communications with an Indian
tribe as “intra-agency” documents under Exemption
5. This Court acknowledged that “neither the terms of
[Exemption 5] nor the statutory definitions say any-
thing about communications with outsiders.” Dep’t of
Interior v. Klamath Water Users Protective Ass’n, 532
U.S. 1, 9 (2001). But the Court recognized that “some
Courts of Appeals” had adopted a consultant corol-
lary. Id. After surveying the law, the Court held that
the consultant corollary—if it existed at all—could
 15

not encompass the communications at issue there:

those by self-interested parties advocating for them-
selves. Id. at 11-16. The Court left open whether a
consultant corollary exists in some form.

Following Klamath, the Fourth and Tenth Cir-

cuits adopted the corollary without any textual justi-
fication for the rule. The Fourth Circuit ruled
expansively that documents covered by the “common
interest privilege” are “intra-agency,” though not
drafted by agency actors. Hunton & Williams v. DOJ,
590 F.3d 272, 275, 277-81 (4th Cir. 2010) (relying on
“Congress’s whole purpose in drafting Exemption 5”).
The Tenth Circuit likewise adopted the corollary
without engaging with Exemption 5’s text—simply
applying it to a paid consultant that “functioned akin
to an agency employee.” Stewart v. U.S. Dep’t of Inte-
rior, 554 F.3d 1236, 1245 (10th Cir. 2009).

The Ninth Circuit in this case has now joined this

trend by relying on Exemption 5’s perceived purpose
to rewrite its plain text. See Pet. App. 13a (“[C]ontext
and purpose suggest that Congress had in mind a
somewhat broader understanding of ‘intra-agency.’”).
Thus, as of today, seven circuits (the First, Second,
Fourth, Fifth, Ninth, Tenth, and D.C. Circuits) have
adopted the so-called “consultant corollary” that
deems a private, outside contractor’s work “intra-
agency” for purposes of Exemption 5. “As in Milner
and Argus Leader, a decades-old D.C. Circuit decision
that contained no meaningful analysis of FOIA’s text
gave birth to an atextual doctrine.” Pet. App. 43a
(Wardlaw, J., dissenting); see supra 1. “And as in
those cases, other circuits followed the D.C. Circuit’s
 16

lead without meaningful analysis of the text or struc-

ture of Exemption 5.” Id.

The Sixth Circuit, in contrast, limits “intra-

agency” to its plain meaning. Lucaj v. FBI, 852 F.3d
541, 547-49 (6th Cir. 2017). In Lucaj, the FBI argued
that documents drafted by foreign countries working
with the FBI—and thus subject to the common-inter-
est privilege—were “intra-agency” under Exemption
5. Id. at 545-49. Rejecting that position, the Sixth Cir-
cuit “bucked” the majority view that Exemption 5 co-
vers documents drafted by outside actors. Pet. App.
42a (Wardlaw, J., dissenting). The court acknowl-
edged the “concern of our sister circuits . . . that agen-
cies have a strong interest in confidential and frank
communication with outsiders.” Lucaj, 852 F.3d at
548. It nevertheless held that the text of Exemption 5
did not accommodate those courts’ reasoning:

Congress chose to limit the exemption’s

reach to “inter-agency or intra-agency mem-
orandums or letters,” 5 U.S.C. § 552(b)(5),
not to “memorandums or letters among
agencies, independent contractors, and enti-
ties that share a common interest with agen-
cies.”

Lucaj, 852 F.3d at 549 (emphasis added). Accordingly,

the Sixth Circuit refused to apply Exemption 5 to
these external documents. Id.4

4 The en banc majority here recognized that Lucaj “arguably

. . . question[ed] the validity of the consultant corollary.” Pet App.

17a n.2. The majority nevertheless asserted that Lucaj does not
 17

Four dissenting judges in the Ninth Circuit

agreed with the Sixth Circuit’s position. Judge Ward-
law, with two other judges joining, explained that
there is no “textual hook for thinking of outside con-
tractors as part of a federal agency.” Pet. App. 37a.
She emphasized that “we cannot ‘tak[e] a red pen to
the statute’ and ‘cut[] out some words and past[e] in
others.’” Pet. App. 48a (quoting Milner v. Dep’t of
Navy, 562 U.S. 562, 573 (2011)). Judge Bumatay like-
wise rejected the majority’s efforts to pick “up its
drafting pen” to “bestow[] on us a supposedly better
law.” Pet. App. 58a.

The circuit split is now firmly developed. On one

side, the First, Second, Fourth, Fifth, Ninth, Tenth,
and D.C. Circuits have adopted the consultant corol-
lary—albeit over two strong dissents by four judges in
the Ninth Circuit. In contrast, the Sixth Circuit has
rejected it. To be sure, the split is lopsided. But the
entrenched, widespread adoption of this atextual rule
only highlights the need for this Court’s intervention.
This Court should grant certiorari and put an end to
the judicially created consultant corollary.

II. The Court Should Grant Certiorari To

Restore Exemption 5’s Plain Meaning.

The atextual approach to Exemption 5 is wrong,

and this Court should grant the petition to restore

create a circuit split because Lucaj was not about independent

contractors—but rather foreign parties. Pet. App. 34a-35a n.8.
But the Sixth Circuit’s reasoning precluded all outsiders—inde-
pendent contractors and foreign parties alike—from being read
into the term “intra-agency.” 852 F.3d at 549.
 18

Exemption 5’s plain meaning. This Court has repeat-

edly granted certiorari to correct longstanding but
atextual interpretations of FOIA exemptions. In Ar-
gus Leader, this Court granted review to overrule the
D.C. Circuit’s atextual, purpose-driven construction
of Exemption 4, despite its universal adoption among
the courts of appeals that considered it. See Food
Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356,
2362-66 (2019). In Milner, this Court similarly
granted certiorari to overrule the D.C. Circuit’s atex-
tual but widely adopted interpretation of Exemption
2—emphasizing that “we have no warrant to ignore
clear statutory language on the ground that other
courts have done so.” 562 U.S. at 576. Review is like-
wise warranted here to correct the “judicial rewrite”
of Exemption 5. Pet. App. 58a (Bumatay, J., dissent-
ing).

A. The consultant corollary is contrary to

the statutory text.

1. Judicial “consideration of [Exemption 5’s] scope

starts with its text.” Milner, 562 U.S. at 569; see Argus
Leader, 139 S. Ct. at 2364. That is also where the
analysis should end, as “Exemption 5’s text is crystal
clear: documents or communications exchanged with
outside consultants do not” constitute “intra-agency
memorandums.” Pet. App. 39a (Wardlaw, J., dissent-
ing).

Exemption 5 protects from disclosure “inter-

agency or intra-agency memorandums or letters that
would not be available by law to a party other than an
agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). As this Court recognized in Klamath,
 19

Exemption 5 is a two-pronged provision and both

prongs have “independent vitality.” 532 U.S. at 8, 12.
This case concerns the threshold requirement: that
the document in question be “inter-agency or intra-
agency.”

To start, “all agree” that APTMetrics “is not an

agency under” FOIA. Pet. App. 59a-60a (Bumatay, J.,
dissenting). FOIA defines the term “agency” to in-
clude only governmental entities. “With exceptions
not relevant here, ‘agency’ means ‘each authority of
the Government of the United States,’ . . . and ‘in-
cludes any executive department, military depart-
ment, Government corporation, Government
controlled corporation, or other establishment in the
executive branch of the Government . . ., or any inde-
pendent regulatory agency.’” Klamath, 532 U.S. at 9
(quoting 5 U.S.C. §§ 551(1), 552(f)). “Nothing in this
definition provides a textual hook for thinking of out-
side contractors as part of a federal agency.” Pet. App.
37a (Wardlaw, J., dissenting).

The word “intra” cannot accommodate an outside

consultant’s work either. FOIA does not define the
term. “So, as usual, we ask what [its] ordinary, con-
temporary, common meaning was when Congress en-
acted FOIA in 1966.” Argus Leader, 139 S. Ct. at 2362
(quotation marks omitted). As it does now, the term
“intra” then meant “in” or “within.” Black’s Law Dic-
tionary 957 (rev. 4th ed. 1968); Webster’s Seventh New
Collegiate Dictionary 444 (1961).

Combining these two words does not give them

the opposite meaning. The term “intra-agency”
“clearly signals the idea of being ‘in’ or ‘within’ a
 20

federal agency.” Pet. App. 37a (Wardlaw, J., dissent-

ing). Accordingly, as even the en banc majority
acknowledged, “the most natural meaning of the
phrase ‘intra-agency memorandum’ is a memoran-
dum that is addressed both to and from employees of
a single agency.” Pet. App. 13a (quoting Julian, 486
U.S. at 18 n.1 (Scalia, J., dissenting)). “[C]ommunica-
tions exchanged with outside consultants,” in con-
trast, “do not fall within th[e] exemption.” Pet. App.
39a (Wardlaw, J., dissenting). “For ‘outside consult-
ants’ are, by definition, not ‘within’ a federal agency.”
Id.

The en banc majority nevertheless held that the

term “intra-agency” should be read to include docu-
ments created by “certain outside consultants.” Pet.
App. 13a-17a. To reach that counterintuitive conclu-
sion, the majority reasoned that a document is “intra-
agency” so long as it is intra-agency “in character,” or
in “function[].” Pet. App. 13a-14a. But the statute
does not include that hedge, and it would not make a
difference in any event. A document coming from the
outside is not intra-agency in character, even if in
some circumstances (though not here) it might serve
a similar functional role. On the one metric Congress
identified—whether the document is “intra”-agency
or not—it does not qualify.

2. This Court has not yet resolved whether Ex-

emption 5 contains a “consultant corollary,” but its
precedent demonstrates why the corollary is irrecon-
cilable with the Exemption’s text.

This Court first touched on the consultant corol-

lary “in the early days of the textualist revolution” in
 21

Julian, 486 U.S. 1 (1988), where “three dissenting jus-

tices suggested in a footnote without much analysis
that the consultant corollary doctrine, though not the
‘most natural meaning’ of Exemption 5, was ‘a permis-
sible and desirable reading of the statute.’” Pet. App.
41a (Wardlaw, J., dissenting) (quoting Julian, 486
U.S. at 18 n.1 (Scalia, J., dissenting)). However, those
justices “did not . . . explain why this meaning was
‘textually possible,’ what ‘the purpose of’ Exemption 5
was, or why that purpose should trump the exemp-
tion’s plain text.” Id.

This Court then addressed the corollary in Kla-

math. It explained that “neither the terms of [Exemp-
tion 5] nor the statutory definitions say anything
about communications with outsiders.” 532 U.S. at 9.
The Court noted the footnote in Julian, id., but it did
not resolve whether a consultant corollary might exist
in some form. Instead, it reasoned that to be intra-
agency, a document’s “source must be a Government
agency.” Id. at 8. And “communications to or from an
interested party seeking a Government benefit at the
expense of other applicants” could not possibly qual-
ify—regardless of whether a corollary exists or not.
Id. at 12-15 & n.4.

While Klamath left this question open, its reason-

ing does not support the adoption of a consultant cor-
ollary. If a document is intra-agency only when its
“source . . . [is] a Government agency,” it would defy
logic to extend Exemption 5 to documents whose
“source” is an outsider. Id. at 8. In this case, the
source of the records is APTMetrics—a private con-
sulting firm that is separate from, and independent
of, the Executive Branch. Indeed, it is the
 22

quintessential outsider: the FAA held APTMetrics out

as an “outside expert[]” that “independently vali-
dated” its personality test. Pet. App. 8a. The “source”
was not a government agency as required by Kla-
math.5

3. Exemption 5’s broader statutory context fur-

ther confirms this plain-text understanding. First,
the surrounding FOIA exemptions demonstrate that
Congress knew how to explicitly protect communica-
tions with outsiders when it elected to do so. Pet. App.
38a (Wardlaw, J., dissenting). Exemption 4 applies to
“trade secrets and commercial or financial infor-
mation obtained from a person and privileged or con-
fidential.” 5 U.S.C. § 552(b)(4) (emphasis added). And
Exemption 8 shields information “contained in or re-
lated to examination, operating, or condition reports
prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of finan-
cial institutions.” 5 U.S.C. § 552(b)(8) (emphasis
added). Notably, the language of Exemption 8—
shielding documents prepared “on behalf of” or “for
the use of an agency”—could just as well have been
describing the consultant corollary. But Congress

5 The en banc majority ruled that APTMetrics’ underlying

validation work might not be intra-agency because the FAA held

that work out as outside and independent. Pet. App. 19a n.3. But
it ruled that APTMetrics’ summaries of that validation work—
prepared for the FAA, purportedly in anticipation of litigation—
were intra-agency documents. Pet. App. 18a-19a. This makes no
sense, given that the same party (APTMetrics) produced all of
this work for the same entity (the FAA), as part of the same pro-
ject (validating the personality test). The “source” of the docu-
ments was the same across the board.
 23

chose not to use that language in Exemption 5. See 5

U.S.C. § 552(b)(5).

The plain-text reading of “intra-agency” memo-

randums also “runs parallel to the judicial interpreta-
tion” of “inter-agency’” memorandums. Pet. App. 39a
(Wardlaw, J., dissenting). The phrase “intra-agency”
allows for the “withholding of memorandums or let-
ters exchanged ‘within’ agencies,” while the phrase
“inter-agency” memorandums “permit[s] the with-
holding of memorandums or letters exchanged ‘be-
tween’ agencies.” Id. (emphasis added). The
consultant corollary, in contrast, makes a mess of the
“intra-” versus “inter-” agency distinction. In the D.C.
Circuit, for instance, documents are “intra-agency”
under the corollary where they are “submitted” by
parties outside the agency “in response to an agency’s
request for advice.” Nat’l Inst. of Mil. Just. v. U.S.
Dep’t of Def., 512 F.3d 677, 681 (D.C. Cir. 2008)
(“NIMJ”). But that broad definition of “intra-agency”
would sweep in neutral advice memorandums pro-
vided by employees of other agencies—documents that
this Court has explained are “inter-agency” memoran-
dums. See Renegotiation Bd. v. Grumman Aircraft
Eng’g Corp., 421 U.S. 168, 188 (1975) (exemption for
“inter-agency” memorandums “permit[s] one agency
possessing decisional authority to obtain written rec-
ommendations and advice from a separate agency”).
A statutory interpretation that says a given memo-
randum is simultaneously “inter-agency” and “intra-
agency” is inconsistent with ordinary usage.

The consultant corollary is also in tension with

FOIA’s threshold definition of “agency records.” See 5
U.S.C. § 552(a)(4)(B). A document is an “agency
 24

record,” and thus subject to disclosure under the stat-

ute, if it was created or obtained by the agency and is
in the agency’s “control,” i.e., its “possession.” U.S.
Dep’t of Just. v. Tax Analysts, 492 U.S. 136, 144-45
(1989). Applying Tax Analysts, the Ninth Circuit here
held that any underlying validation studies (as op-
posed to summaries of those studies) were not “agency
records”—and thus were exempt from disclosure—be-
cause they were in “APTMetrics’ possession,” but not
“in the agency’s possession.” Pet. App. 23a (emphasis
added). But if APTMetrics is distinct from the agency
for purposes of the statute’s disclosure obligations—
such that documents authored and possessed by APT-
Metrics are not “records” of the “agency”—it defies or-
dinary usage to say that communications between
APTMetrics and the agency are nonetheless “intra-
agency” memorandums. By instead limiting “intra-
agency memorandums” to those that originate within
the agency itself, the terms “intra-agency memoran-
dum” and “agency record” are harmonized.

B. Exemption 5’s purpose is consistent with

its plain meaning.

Despite Exemption 5’s explicit limitation to “in-

ter-agency or intra-agency” memorandums, the en
banc majority held that agency communications with
non-governmental, outside consultants were pro-
tected from FOIA’s mandatory disclosure obligation.
How did the majority “justify this judicial rewrite? It’s
purpose all the way down.” Pet. App. 58a (Bumatay,
J., dissenting). But this approach “is a relic from a by-
gone era of statutory construction,” Pet. App. 40a
(Wardlaw, J., dissenting) (quoting Argus Leader, 139
 25

S. Ct. at 2364), and it also misinterprets the purpose

of Exemption 5 even on its own terms.

1. “On every level,” FOIA’s statutory purpose

“cuts against the consultant corollary.” Pet. App. 44a
(Wardlaw, J., dissenting). At the highest level, “dis-
closure, not secrecy, is the dominant objective of the
Act.” Klamath, 532 U.S. at 8. “In FOIA, after all, a
new conception of Government conduct was enacted
into law, a general philosophy of full agency disclo-
sure.” Id. at 16 (quotation marks omitted). “Congress
believed that this philosophy, put into practice, would
help ensure an informed citizenry, vital to the func-
tioning of a democratic society.” Tax Analysts, 492
U.S. at 142 (quotation marks omitted). “Giving Ex-
emption 5 its fair compass, and nothing more, lives up
to these ideals, and ensures that the workings of the
Executive Branch are transparent to the American
people.” Pet. App. 49a-50a (Wardlaw, J., dissenting).

Exemption 5’s text reveals its purpose: to shield

from mandatory disclosure a narrow band of docu-
ments satisfying “two conditions”: (1) that the docu-
ment is an “intra-agency” or “inter-agency”
memorandum or letter, and (2) that it is not disclosa-
ble in ordinary litigation discovery. See Klamath, 532
U.S. at 8. There is “no textual justification for drain-
ing the first condition of independent vitality.” Id. at
12. As discussed above, the text demonstrates that
Exemption 5 was not meant to shield agency commu-
nications with outside consultants. Supra § II.A.

This Court should not resort to legislative history

to “muddy clear statutory language.” Milner, 562 U.S.
at 572. “Indeed, this Court has repeatedly refused to
 26

alter FOIA’s plain terms on the strength only of argu-

ments from legislative history.” Argus Leader, 139 S.
Ct. at 2364. But even if that history were relevant, it
would simply confirm that the consultant corollary re-
lies on a misunderstanding of Exemption 5’s purpose.
Both the House and Senate Reports accompanying
FOIA’s enactment focus on the importance of protect-
ing communications between government employ-
ees—not with outside contractors. The House Report
discusses the importance of full and frank “internal
communications,” including “advice from staff assis-
tants and the exchange of ideas among agency person-
nel.” H.R. Rep. No. 89-1497 at 31 (1966). The Senate
Report likewise singles out the need for candor from
“Government officials” communicating with their “su-
periors and coworkers.” S. Rep. No. 88-1219 at 13-14
(1964). There is no indication that Exemption 5 was
meant to shield communications with people or enti-
ties outside the agency, including documents ex-
changed with independent contractors specifically
hired for their outside expertise.

2. To justify its “judicial rewrite” of the statute,

Pet. App. 58a (Bumatay, J., dissenting), the Ninth
Circuit’s en banc majority reasoned that outside con-
sultants must be read into the phrase “intra-agency”
because “[o]utside consultants would presumably be
just as hesitant as agency employees to engage in
frank discussion” if their communications were dis-
closed. Pet. App. 15a. In other words, the majority
read outside actors into a statute (and its legislative
history) despite the fact that the text and history ex-
clude them at every level. This “invocation of purpose”
is “a ‘bald assertion of an unspecified and hence un-
bounded judicial power to ignore what the law says.’”
 27

Pet. App. 59a (Bumatay, J., dissenting) (quoting

Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1077
(2020) (Thomas, J., dissenting)) (quoting Antonin
Scalia & Bryan A. Garner, Reading Law: The Inter-
pretation of Legal Texts 343 (2012)). It “creates an ‘es-
cape route from the prison of the text,’ by invoking
Exemption 5’s supposed purpose and imposing a more
faithful—as the majority sees it—version of the law.”
Pet. App. 58a-59a (quoting Reading Law 19).

The Ninth Circuit en banc majority also tried to

justify going beyond Exemption 5’s plain text on the
grounds that “without the protection afforded by Ex-
emption 5, an agency’s litigation opponents could ob-
tain under FOIA the same privileged communications
they were barred from obtaining under civil discovery
rules.” Pet. App. 14a. In so holding, the en banc ma-
jority “reverse engineer[ed] [its] interpretation” of “in-
tra-agency memorandum,” Pet. App. 67a (Bumatay,
J., dissenting)—stretching that term to be coextensive
with the discovery privilege, see Pet. App. 14a-16a.
But this rationale relied on pre-Klamath cases like
United States v. Weber Aircraft Corp., 465 U.S. 792
(1984), that “addressed only [the privilege-focused]
half of the Exemption 5 inquiry.” Pet. App. 46a (Ward-
law, J., dissenting). This approach contravenes Kla-
math’s teaching that Exemption 5’s first condition—
“intra-agency memorandum”—is not “a purely conclu-
sory term” for any privileged “document the Govern-
ment would find it valuable to keep confidential.” 532
U.S. at 12. Rather, “Congress had to realize that not
every secret under the old law would be secret under
the new.” Id. at 16.
 28

3. In adopting the consultant corollary, the en

banc majority was also motivated by “a consequential-
ist . . . fear” of the “types of government documents
that may enter the public domain if we take Congress
at its word in Exemption 5.” Pet. App. 48a (Wardlaw,
J., dissenting). In particular, the majority was con-
cerned that the plain-text reading of the Exemption
could lead to the disclosure of communications be-
tween an agency and an attorney retained as outside
counsel. Pet. App. 15a-16a. However, this “concern for
the protection of an agency’s outside counsel’s work
product” is “a red herring,” as “that is not this case.”
Pet. App. 67a (Bumatay, J., dissenting). “APTMetrics
is not outside counsel and no one suggests it is the
functional equivalent of one.” Pet. App. 67a-68a. It
makes little if any sense to adopt a broad, atextual
consultant corollary to address concerns about a spe-
cific set of cases that might implicate a distinct “attor-
ney corollary.”

Nor are the courts authorized to “amend” FOIA to

accommodate such concerns. Pet. App. 67a (Bumatay,
J., dissenting). “[N]othing in FOIA either explicitly or
implicitly grants courts discretion to expand (or con-
tract) an exemption on th[e] basis” of concerns about
“workable agency practice.” Milner, 562 U.S. at 571
n.5. Rather, in “enacting FOIA, Congress struck the
balance it thought right—generally favoring disclo-
sure, subject only to a handful of specified exemp-
tions—and did so across the length and breadth of the
Federal Government.” Id. Accordingly, this Court has
given FOIA exemptions their plain meaning even
when doing so would “upset[] . . . decades of agency
practice” and “force considerable adjustments.” Id. at
580.
 29

Congress, after all, “can always amend FOIA” if it

determines that greater protection for an agency’s
communications with outsiders is appropriate. Pet.
App. 49a (Wardlaw, J., dissenting). Congress “has
proven itself more than willing to” do so. Id. (citing
examples). Policy disagreements with the scope of dis-
closure are thus “properly addressed to Congress, not
to this Court.” Consumer Prod. Safety Comm’n v. GTE
Sylvania, Inc., 447 U.S. 102, 123-24 (1980).

As Judge Bumatay explained, it is also entirely

unclear exactly how such a case “would arise” in prac-
tice. Pet. App. 68a. For example, the FAA cannot “just
retain any lawyer of its choice.” Id. Rather, “by law,
the Department of Justice provides it legal counsel
and must represent it in all litigation.” Id. (citing stat-
utes). And there is no question that communications
between an agency and its inside counsel constitute
“inter-agency or intra-agency memorandums” within
Exemption 5’s scope. While the FDIC—a different
agency not at issue in this case—is authorized by law
to hire outside counsel, its unique relationship with
those attorneys is not part of this record. See Pet. App.
68a n.10.

If such a case were ever to arise, the Government

would be free to argue that communications between
an agency and its outside counsel are “intra-agency
memorandums” due to the particular relationship at
issue. It might claim that it was relevant, for instance,
if a person, acting as the agency’s attorney, were le-
gally authorized to speak for the agency and bind it in
judicial proceedings. See Pet App. 102a (Christen, J.,
dissenting) (when a common-law agent “acts on the
principal’s behalf,” “the agent’s acts are the principal’s
 30

acts” (emphasis added) (quotation marks omitted)).

Evaluating the issue in the context of a concrete dis-
pute, if it ever arises, would help to clarify these and
other potentially relevant aspects of the outside-coun-
sel relationship. See Pet. App. 68a n.10 (Bumatay, J.,
dissenting) (cataloging unbriefed facts such as
whether “outside counsel are hired as special Govern-
ment employees,” or “if other federal laws, such as
conflicts and ethics requirements, apply to outside
counsel”). Here, however, the Government success-
fully argued below that records created and possessed
by APTMetrics are not “agency records” precisely be-
cause APTMetrics is distinct from the FAA. Pet. App.
23a; supra § II.A. The Government cannot have it
both ways.

III. This Case Presents An Issue Of Recurring

Significance In Need Of This Court’s
Resolution.

At the center of this dispute is whether courts can

rewrite a public disclosure statute to narrow the scope
of documents that federal agencies must release. This
Court has already considered this judicially created
consultant corollary once, in Klamath, paring it back
from its most extreme form, without reaching the
broader question of the validity of engrafting any form
of the consultant corollary onto Exemption 5. In the
decades since Klamath, the consultant corollary—di-
vorced from FOIA’s text—has become a standardless
tool for withholding that is not only wrong, but is also
inconsistently applied across the circuits that have
adopted it. This Court’s intervention is again needed.
 31

1. To start, this Court’s review is necessary to re-

solve widespread confusion about both what this
Court held in Klamath, and how a consultant corol-
lary might work. The Tenth Circuit, for its part, mis-
understood Klamath to affirmatively “recogniz[e] that
Exemption 5 extends to government agency commu-
nications with paid consultants.” Stewart, 554 F.3d at
1244. It therefore adopted the consultant corollary
without any analysis at all. Id. In contrast, the Sixth
Circuit concluded the opposite—that “the Supreme
Court rejected” the arguments underlying the con-
sultant corollary. Lucaj, 852 F.3d at 548. The Ninth
Circuit here adopted a third position: that Klamath
“did not endorse the consultant corollary,” but “de-
fine[d] the outer boundaries of Exemption 5’s reach.”
Pet. App. 17a. This Court often accepts review “where
the decision below is premised upon a prior Supreme
Court opinion whose implications are in need of clari-
fication.” Stephen M. Shapiro et al., Supreme Court
Practice 254 (10th ed. 2013). Given that the circuits
have reached at least three different conclusions
about whether Klamath allows, requires, or prohibits
the consultant corollary, this Court’s review is plainly
warranted.

Unmoored from the text, even those courts that

have accepted the corollary have established amor-
phous and inconsistent tests to determine the condi-
tions under which documents created by agency
outsiders are somehow “intra-agency.” The incon-
sistency is unsurprising: because the consultant cor-
ollary “is nowhere evident in the statute, courts lack
the normal guideposts for ascertaining its coverage.”
Milner, 562 U.S. at 577 n.8 (rejecting similarly atex-
tual approach to Exemption 2).
 32

For example, the Ninth and Tenth Circuits reason

that the consultant corollary extends to paid outside
consultants when those individuals function as
agency employees. See Pet. App. 18a (asking “whether
the consultant acted in a capacity functionally equiv-
alent to that of an agency employee in creating the
document or documents the agency seeks to with-
hold”); Stewart, 554 F.3d at 1245 (applying corollary
to a “paid consultant” who “functioned akin to an
agency employee”).

The D.C., Second, and Fifth Circuits sometimes

echo that standard, but they apply a different lens,
focusing principally on the role that the withheld doc-
ument played in the deliberative process. See NIMJ,
512 F.3d at 681 (“[T]he pertinent element is the role,
if any, that the document plays in the process of
agency deliberations.”) (quotation marks omitted);
Lead Indus. Ass’n, 610 F.2d at 80-83 (Exemption 5
covered documents “clearly implicated in the deliber-
ative process”); Jobe v. Nat’l Transp. Safety Bd., 1
F.4th 396, 404 (5th Cir. 2021) (“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 deliber-
ative process”(quotation marks omitted)).6

6 This distinction—focusing more on the document’s role

than the nature of the document’s author—is important. In the

Fifth and D.C. Circuits, for example, documents drafted by self-
interested parties have repeatedly been deemed “intra-agency”
because of the role the documents played in the deliberative pro-
cess—despite the fact that the documents’ authors (including
regulated parties, Senators, and former Presidents) were plainly
 33

The Fourth Circuit has applied yet another test,

finding a document intra-agency when “the public in-
terest and the [author of the document’s] interest . . .
converged” under the common-interest doctrine.
Hunton & Williams, 590 F.3d at 280. In Hunton &
Williams, Exemption 5 shielded from disclosure the
DOJ’s communications with the maker of BlackBerry
in advance of patent reexamination proceedings. Id.
at 274-75, 278-81. Yet no one would argue that Black-
Berry was functioning akin to a DOJ employee under
the Ninth and Tenth Circuit tests.

This confusion is the predictable result of a doc-

trine “derived [not] from the text of Exemption 5 or
frankly any other legislation,” but “simply made . . .
up” based on policy concerns. Pet. App. 66a-67a
(Bumatay, J., dissenting). Two decades after Klamath
left the question open, it is clear that the consultant
corollary is neither textually grounded nor judicially
administrable.

2. The negative consequences stemming from the

amorphous consultant corollary are not theoretical.
FOIA Exemption 5 is “one of the most important and
frequently invoked exemptions.” Julian, 486 U.S. at
22 (Scalia, J., dissenting); see 33 Charles A. Wright,
Federal Practice & Procedure § 8441 (1st ed.) (noting
that courts continually recognize the exceptional im-
portance of Exemption 5 because of the frequency
with which the Government invokes it). This Court
has thus repeatedly taken up Exemption 5 to resolve
disagreements. See, e.g., U.S. Fish & Wildlife Serv. v.

not functioning as agency employees. See infra 35 (discussing

Jobe, Ryan, and Public Citizen).
 34

Sierra Club, Inc., 141 S. Ct. 777 (2021); Klamath, 532

U.S. at 5; Weber Aircraft, 465 U.S. at 792; NLRB v.
Sears, Roebuck & Co., 421 U.S. 132 (1975).

Just last year, the Government invoked Exemp-

tion 5 to shield documents in over 59,000 records re-
quests. See Report: Disposition of FOIA Requests –
Number of Times Exemptions Applied (2020),
https://tinyurl.com/6wsmsprs. And in the last two
years, lower courts have considered over 300 cases
touching on Exemption 5, with nearly 20 cases apply-
ing the consultant corollary doctrine.

These cases involve federal agencies contracting

with private parties regarding a huge range of social
and regulatory issues—with absolutely no visibility
for the public. See, e.g., Jobe, 1 F.4th at 407 (Exemp-
tion 5 covers NTSB’s communications with the pri-
vate entities it regulates when those private parties
assist in the safety investigations of their own aircraft
following crashes); Lead Indus. Ass’n, 610 F.2d at 73,
80 (Exemption 5 covers communications with consult-
ants hired to analyze standard for regulations about
occupational exposure to lead).

Several courts have explicitly acknowledged that

these private consultants may bring their own views
and interests to the table—and yet they still hold that
Exemption 5 shields these private influences from
public scrutiny. See Stewart, 554 F.3d at 1245 (“We
find no support for a limitation on paid consultants
that they must lack ‘deep-seated views.’”); Pub. Citi-
zen, Inc. v. DOJ, 111 F.3d 168, 171 (D.C. Cir. 1997)
(Exemption 5 protects communications between for-
mer Presidents and the National Archives and
 35

Records Administration, even though the Presidents

had “independent . . . interests.”); Ryan, 617 F.2d at
791 (“Expressions of personal views or recommenda-
tions of a Senator, on the other hand, are clearly ex-
empt from disclosure.”). While this Court called
Public Citizen and Ryan into question in Klamath,
532 U.S. at 12 n.4, both remain good law in the D.C.
Circuit. And the Fifth Circuit just relied on both in
holding that “Klamath does not stand for the broad
principle that a consultant’s ‘self-interest’ always ex-
cludes it from Exemption 5.” Jobe, 1 F.4th at 400. Yet
as Judge Ho explained in a powerful dissent in that
case, a “communication between the regulator and the
regulated—between parties with conflicting public
versus private interests—is the very opposite of an in-
ternal government communication.” Id. at 409 (Ho, J.,
dissenting).

Without public disclosure of the documents that

outsiders—including interested parties—generate
and share with agencies, there is little possibility for
oversight or democratic accountability. Instead of be-
ing “a tool used to probe the relationship between gov-
ernment and business,” FOIA, under the Ninth
Circuit’s rule, will become “unavailable whenever
government and business wish it so.” Argus Leader,
139 S. Ct. at 2368 (Breyer, J., concurring in part and
dissenting in part). The consultant corollary legiti-
mizes “the temptation, common across the private
and public sectors, to regard as secret all information
that need not be disclosed” and deprives “the public of
information for reasons no better than convenience,
skittishness, or bureaucratic inertia.” Id.
 36

3. This case presents an especially stark example

of the dramatic effect of an agency’s withholding of
documents created by private, outside consultants.
The FAA hired a private company—APTMetrics—to
develop a personality test to screen for prospective air
traffic controllers. The FAA told Mr. Rojas that the
test was independently validated by outside experts.
Pet. App. 8a. And it told members of Congress the
same thing—that APTMetrics had validated the per-
sonality test. Subcomm. Hearing at 21 (“[O]ur con-
sultants have done the validation work.”); see Pet.
App. 51a (Thomas, J., concurring in part and dissent-
ing in part) (“[T]he FAA has repeatedly confirmed
that both the 2014 and 2015 biographical assess-
ments had been validated.”). The FAA recognized that
validation work as a “legal[] . . . obligation.” Id.

To this day, it is nevertheless hard to know ex-

actly what validation work actually occurred. The
FAA’s appellate brief refers to “interim validation
work”—without explaining what about it was unfin-
ished. C.A. Doc. 20 at 19 (Answering Brief). This
should not be a mystery. APTMetrics knows exactly
what work it did and did not do. But APTMetrics is a
private company, so work solely in its possession is
not an “agency record” subject to release under FOIA.
The FAA also knows what APTMetrics did—APT-
Metrics gave the agency (at a minimum) written sum-
maries of its work. But the FAA is refusing to release
those summaries—in its view the only agency records
showing what exactly transpired—because the exact
same private, external, independent contractor’s
memos are “intra-agency,” and thus shielded from re-
lease. In other words, APTMetrics’ work was simulta-
neously private enough to be totally outside the scope
 37

of FOIA, and public enough to be intra-agency and

thus shielded by a FOIA exemption. That absurd con-
sequence is the natural result of the atextual consult-
ant corollary.

IV. This Case Is An Ideal Vehicle To Resolve The

Question Presented.

This case presents an ideal vehicle to resolve the

circuit conflict and restore the plain text of Exemption
5. The question presented “was fully litigated below.”
Yee v. City of Escondido, 503 U.S. 519, 538 (1992). The
en banc court generated four separate opinions on the
issue—two on each side, see Pet. App. 12a-22a (en
banc majority); Pet. App. 25a-35a (Collins, J., concur-
ring); Pet. App. 35a-50a (Wardlaw, J., dissenting);
Pet. App. 57a-69a (Bumatay, J., dissenting), in addi-
tion to the majority and dissent by the original panel,
see Pet. App. 80a-91a (panel majority), Pet. App. 94a-
112a (Christen, J., dissenting).

The question presented will also conclusively de-

termine whether Exemption 5 applies. The Ninth Cir-
cuit ruled that two validation summaries are
privileged—fulfilling the second condition of Exemp-
tion 5. The dispositive issue is thus whether the doc-
uments are “intra-agency”—i.e., whether Exemption
5 includes an atextual “consultant corollary.” Com-
pare Pet. App. 18a-22a (en banc majority) (adopting
corollary and finding summaries satisfy Exemption
5), with Pet. App. 35a-36a (Wardlaw, J., dissenting)
(rejecting corollary and concluding summaries do not
 38

satisfy plain-text reading of Exemption 5); Pet. App.

58a-60a (Bumatay, J., dissenting) (same).7

Finally, this case provides a highly representative

context to resolve the issue. The communications at
issue here are memoranda “prepared for an agency by
outside experts” retained as “temporary consultants.”
Soucie, 448 F.2d at 1078 n.44. These are exactly the
type of documents that prompted the D.C. Circuit to
invent the consultant corollary in the first place, and
records like these remain at the heart of the corollary
today.

7 As noted above, the court of appeals declined to apply Ex-

emption 5 to a third requested document because the FAA failed

to show it was privileged. Pet. App. 21a (discussing document
dated September 2, 2015). The court remanded on that question.
Pet. App. 22a. The outcome of that privilege determination will
have no effect on the resolution of whether Exemption 5 covers
the two documents already adjudicated to be privileged.
 39

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

Robert M. Loeb Naomi J. Scotten

Thomas M. Bondy Counsel of Record
Karim J. Kentfield Abigail Colella
Monica Haymond ORRICK, HERRINGTON &
ORRICK, HERRINGTON SUTCLIFFE LLP
& SUTCLIFFE LLP 51 West 52nd Street
1152 15th Street, NW New York, NY 10019
Washington, DC (212) 506-5000
20005 nscotten@orrick.com

July 29, 2021

 1a
APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE ALEJANDRO No. 17-55036

ROJAS,
Plaintiff-Appellant, D.C. No. 2:15-cv-
05811-CBM-SS
v.
OPINION
FEDERAL AVIATION
ADMINISTRATION,
Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California
Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted En Banc September 22, 2020

San Francisco, California

March 2, 2021

Before: Sidney R. Thomas, Chief Judge, and Susan

P. Graber, Kim McLane Wardlaw, Johnnie B.
Rawlinson, Consuelo M. Callahan, Milan D. Smith,
Jr., Sandra S. Ikuta, Paul J. Watford, Andrew D.
Hurwitz, Daniel P. Collins, and Patrick J. Bumatay,
Circuit Judges.
 2a
Opinion by Judge Watford;
Concurrence by Judge Collins;
Partial Concurrence and Partial Dissent by Judge
Wardlaw;

Partial Concurrence and Partial Dissent by

Chief Judge Thomas;
Partial Dissent by Judge Ikuta;
Partial Concurrence and Partial Dissent by Judge
Bumatay

SUMMARY*

Freedom of Information Act

The en banc court affirmed in part and vacated in

part the district court’s summary judgment in favor of
the Federal Aviation Administration (“FAA”) in a
plaintiff’s Freedom of Information Act (“FOIA”) action
seeking FAA agency records.

FOIA’s Exemption 5 provides that FOIA’s disclo-

sure requirements do not apply to “inter-agency or in-
tra-agency memorandums or letters that would not be
available by law to a party … in litigation with the
agency.” 5 U.S.C. § 552(b)(5). The FAA’s Office of
Chief Counsel informed plaintiff that it was withhold-
ing three documents from his FOIA requests under
Exemption 5. The validation documents that the FAA

* This summary constitutes no part of the opinion of the

court. It has been prepared by court staff for the convenience of
the reader.
 3a
sought to withhold were prepared by an outside con-
sultant rather than by an FAA employee.

The en banc court joined six sister circuits that

have recognized some version of the consultant corol-
lary to Exemption 5, and held that the term “intra-
agency” in § 552(b)(5) included, at least in some cir-
cumstances, documents prepared by outside consult-
ants hired by the agency to assist in carrying out the
agency’s functions. The court held that the relevant
inquiry asks whether the consultant acted in a capac-
ity functionally equivalent to that of an agency in cre-
ating the document or documents the agency sought
to withhold.

Applying these principles, the en banc court con-

cluded that the consultant, APTMetrics, created the
three documents at issue while performing work in
the same capacity as an employee of the FAA. APT-
Metrics represented neither its own interests nor
those of any other client in carrying out its work, and
it did not share the documents with anyone outside
the FAA’s Office of Chief Counsel. With respect to the
preparation of the documents, APTMetrics was oper-
ating enough like the FAA’s own employees to justify
calling its own communications with the FAA “intra-
agency.”

Because the documents at issue qualified as intra-

agency memorandums, the en banc court next consid-
ered whether they satisfied Exemption 5’s second re-
quirement that the documents “would not be availa-
ble by law to a party … in litigation with the agency.”
5 U.S.C. § 552(b)(5). The court, agreeing with the dis-
trict court, held that two of the three documents listed
 4a
in the Vaughn index were protected by the attorney
work-product privilege and thus could not be subject
to discovery in civil litigation with the FAA. A re-
mand, however, was necessary to determine whether
the third document was also protected by privilege;
and the court vacated the district court’s summary
judgment for the FAA as to the third document.

The en banc court addressed plaintiff’s arguments

concerning the adequacy of the FAA’s search for re-
sponsive documents. First, the court held that Su-
preme Court precedent foreclosed plaintiff’s conten-
tion that the FAA should have been required to search
APTMetrics’ records for documents responsive to his
FOIA request. Second, the court held that the decla-
rations submitted by the FAA failed to show that it
conducted a search reasonably conducted to uncover
all relevant documents.

The en banc court remanded for further proceed-

ings.

Judge Collins joined in the majority opinion that

adopted the reading of Exemption 5 endorsed by Jus-
tice Scalia in his dissenting opinion in U.S. Depart-
ment of Justice v. Julian, 486 U.S. 1 (1988), and wrote
separately to respond to the dissents’ erroneous con-
tentions that Justice Scalia’s reading of Exemption 5
was “atextual.”

Judge Wardlaw, joined by Chief Judge Thomas

and Judge Hurwitz, concurred in part and dissented
in part. Judge Wardlaw would hold that Exemp-
tion 5’s text is crystal clear: documents or communi-
cations exchanged with outside consultants do not fall
 5a
within that exemption. She agreed with the majority
that the FAA’s search for records was inadequate, and
joined part III of the majority opinion.

Chief Judge Thomas concurred in part and dis-

sented in part. He joined Judge Wardlaw’s dissent in
full, and also agreed with the majority opinion’s hold-
ing that the FAA did not meet its burden to show that
it conducted an adequate search for documents re-
sponsive to plaintiff’s FOIA request. He wrote sepa-
rately to observe that, even if the consultant corollary
formed part of Exemption 5, it would not protect the
specific information sought in this case because the
information was required to be maintained and made
publicly available by the agency.

Judge Ikuta, joined by Judges Graber and Calla-

han, and joined by Judge Bumatay except as to foot-
note 1, dissented in part. Judge Ikuta disagreed with
the majority’s conclusion that the declaration submit-
ted by the FAA failed to show that the agency con-
ducted a search reasonably calculated to uncover all
relevant documents in response to the FOIA request.
In footnote 1, Judge Ikuta stated that she agreed with
the majority’s interpretation of “intra-agency memo-
randums or letters” to include documents prepared by
outside consultants hired by the agency to assist its
functions, and she would affirm the summary judg-
ment for the FAA as to the first two withheld docu-
ments, and reverse as to the third document for the
reasons stated in the majority opinion.

Judge Bumatay concurred in part and dissented

in part. He would hold that FOIA Exemption 5 does
not cover consultant work product, and by its plain
 6a
text, it does not protect APTMetric’s documents from
disclosure. He agreed with the majority that the FAA
was not required to search APTMetric’s records for re-
sponsive documents, but agreed with Judge Ikuta’s
dissent that the majority was incorrect in finding that
FAA’s search was inadequate.

COUNSEL

Naomi J. Scotten (argued), Orrick Herrington & Sut-

cliffe LLP, New York, New York; Michael W. Pearson,
Curry Pearson & Wooten PLC, Phoenix, Arizona;
Robert M. Loeb and Thomas M. Bondy, Orrick Her-
rington & Sutcliffe LLP, Washington, D.C.; for Plain-
tiff-Appellant.

Jeffrey E. Sandberg (argued), and Mark B. Stern, Ap-

pellate Staff; Hashim M. Mooppan, Deputy Assistant
Attorney General, Washington, D.C.; Alarice M.
Medrano, Assistant United States Attorney; Dorothy
A. Schouten, Chief, Civil Division; United States At-
torney’s Office, Los Angeles, California; for Defend-
ant-Appellee.

Katie Townsend, Caitlin Vogus, Adam A. Marshall,

Gunita Singh, and Daniel J. Leon, Reporters Commit-
tee for Freedom of the Press, Washington, D.C., for
Amici Curiae Reporters Committee for Freedom of
the Press and 24 Media Organizations.

Gregg P. Leslie, Samuel Turner, and John Dragovits,

First Amendment Clinic, Arizona State University,
Sandra Day O’Connor College of Law, Phoenix, Ari-
zona, for Amicus Curiae Project on Government Over-
sight.
 7a
OPINION

WATFORD, Circuit Judge:

To ensure greater transparency in the operation

of government agencies, the Freedom of Information
Act (FOIA) mandates disclosure of nearly all agency
records upon request, unless the records fall within
one of nine exemptions specified in the Act. See
5 U.S.C. § 552(b)(1)-(9); NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 136 (1975). This case involves Ex-
emption 5, which provides that FOIA’s disclosure re-
quirements do not apply to “inter-agency or intra-
agency memorandums or letters that would not be
available by law to a party … in litigation with the
agency.” 5 U.S.C. § 552(b)(5). The main question be-
fore us is what the term “intra-agency” means in this
context. Does a document qualify as “intra-agency”
only if the author and recipient are employees of the
same agency? Or does the term also include, at least
in some circumstances, documents prepared by out-
side consultants hired by the agency to assist in car-
rying out the agency’s functions? We join six of our
sister circuits in adopting the latter reading of “intra-
agency,” dubbed by some the “consultant corollary” to
Exemption 5.

The plaintiff in this case is Jorge Alejandro Rojas.

In March 2015, Rojas applied to the Federal Aviation
Administration (FAA) for an entry-level position as
an air traffic controller. As part of the application pro-
cess, he took a computerized test designed to measure
certain attributes deemed relevant to success in the
 8a
position, such as self-confidence, stress tolerance, and
teamwork. The parties refer to this test as the “bio-
graphical assessment.” The FAA rejected Rojas’s ap-
plication in a notice that stated the following: “Based
upon your responses to the Biographical Assessment,
we have determined that you are NOT eligible for this
position as a part of the current vacancy announce-
ment.” The notice informed Rojas that the biograph-
ical assessment measures “job applicant characteris-
tics that have been shown empirically to predict suc-
cess as an air traffic controller,” and stated that the
test “was independently validated by outside ex-
perts.”

Rojas understandably wanted to learn more about

the FAA’s use of the biographical assessment as a se-
lection tool—in particular, whether the test had been
empirically validated (that is, shown to have the
power to predict successful job performance) as the
FAA claimed. At the time, little was known about the
test, as it had been deployed for the first time during
the previous year’s hiring cycle, in February 2014, at
the recommendation of an outside consulting firm
called APTMetrics. The FAA had hired the firm in
2012 to review the agency’s hiring process, to propose
recommendations for improvement, and to assist the
agency in implementing those improvements. APT-
Metrics developed the biographical assessment as
part of that work and, after its debut during the 2014
hiring cycle, revised the test for use in the upcoming
2015 hiring cycle. In early fall of 2014, APTMetrics
performed validation work on the revised 2015 ver-
sion of the test, work that presumably formed the ba-
sis for the FAA’s claim that the test had been “inde-
pendently validated by outside experts.”
 9a
Under FOIA, Rojas asked the FAA to produce doc-
uments containing “information regarding the empir-
ical validation of the biographical assessment” men-
tioned in his rejection notice, including “any report
created by, given to, or regarding APTMetrics’ evalu-
ation and creation and scoring of the assessment.”

The FAA assigned Rojas’s request to four differ-

ent offices within the agency: Air Traffic Organiza-
tion, FOIA Program Management Branch, Office of
Human Resources, and the Employment and Labor
Law Division of the Office of the Chief Counsel. The
Office of Human Resources informed Rojas that it had
found responsive documents relating to empirical val-
idation of the biographical assessment but was with-
holding those documents under Exemption 5. The Of-
fice of the Chief Counsel similarly informed Rojas that
it had located responsive documents but was with-
holding them under Exemption 5 as well. Following
Rojas’s administrative appeal of that decision, the Of-
fice of the Chief Counsel realized that its search had
mistakenly focused on the 2014 biographical assess-
ment, rather than on the 2015 version of the test that
was the subject of Rojas’s FOIA request. The office
conducted a second search, which produced the three
documents at issue in this appeal. The FAA informed
Rojas that it was withholding all three documents un-
der Exemption 5.

Rojas sued the FAA under FOIA, which author-

izes district courts “to enjoin [an] agency from with-
holding agency records and to order the production of
any agency records improperly withheld from the
complainant.” 5 U.S.C. § 552(a)(4)(B). For reasons
that are unclear from the record, Rojas’s suit does not
 10a
challenge the Office of Human Resources’ withholding
of documents under Exemption 5. He challenges only
the Office of the Chief Counsel’s decision to withhold
documents under that exemption.

The FAA bears the burden of establishing that the

documents it seeks to withhold are covered by Exemp-
tion 5. See 5 U.S.C. § 552(a)(4)(B); Lahr v. National
Transportation Safety Board, 569 F.3d 964, 973 (9th
Cir. 2009). The FAA sought to meet that burden by
submitting a “Vaughn index,” a document that iden-
tifies the records being withheld, the exemption in-
voked to justify withholding, and the reason why each
document is subject to the claimed exemption. See
Hamdan v. Department of Justice, 797 F.3d 759, 769
n.4 (9th Cir. 2015) (citing Vaughn v. Rosen, 484 F.2d
820 (D.C. Cir. 1973)). The FAA’s Vaughn index de-
scribed the three documents at issue here. For each,
the FAA identified APTMetrics as the sender and the
FAA’s Office of the Chief Counsel as the recipient;
stated that the documents’ subject matter was devel-
opment and validation of the 2015 biographical as-
sessment; invoked Exemption 5 as the ground for
withholding; and explained that the documents had
been prepared by APTMetrics at the request of law-
yers in the Office of the Chief Counsel in anticipation
of litigation.

The FAA submitted two declarations providing

factual support for its claim that the documents had
been prepared in anticipation of litigation and were
therefore protected by the attorney work-product
privilege. A declaration from a lawyer in the FAA’s
Office of the Chief Counsel explained that in April
2014, after the agency’s use of the biographical
 11a
assessment during the 2014 hiring cycle, an unsuc-
cessful applicant filed a putative class action against
the agency alleging discrimination. In November
2014, the Office of the Chief Counsel asked the Chief
Operating Officer of APTMetrics, John Scott, “to sum-
marize elements of his validation work” related to the
revised version of the biographical assessment that
the agency planned to use during the upcoming 2015
hiring cycle. Scott provided summaries of his valida-
tion work in December 2014 and January 2015. Ac-
cording to the declaration, those summaries “were
prepared solely at the request and direction of the Of-
fice of the Chief Counsel and were not shared with
other elements of the [FAA] outside of the Office of the
Chief Counsel.” Mr. Scott submitted a declaration of
his own confirming that APTMetrics had prepared
“summaries and explanations” of its validation work
at the request of lawyers in the Office of the Chief
Counsel.

On the basis of the Vaughn index and supporting

declarations, the FAA moved for summary judgment.
After reviewing the three documents in camera, as
FOIA permits, see 5 U.S.C. § 552(a)(4)(B), the district
court granted summary judgment for the FAA. The
court held that the documents were properly subject
to withholding under Exemption 5 and rejected Ro-
jas’s challenges to the adequacy of the agency’s search
for responsive documents.

A three-judge panel of our court reversed. Rojas v.

FAA, 927 F.3d 1046 (9th Cir. 2019). The panel divided
on the question whether the documents at issue are
covered by Exemption 5. Over Judge Christen’s dis-
sent, a majority of the panel held that they are not.
 12a
The majority declined to adopt the consultant corol-
lary to Exemption 5, which it regarded as inconsistent
with the statute’s plain text and FOIA’s general policy
of fostering broad disclosure of agency records. Id. at
1055-58. Because the validation documents the FAA
sought to withhold were prepared by an outside con-
sultant rather than by an FAA employee, the majority
concluded that the documents do not qualify as “intra-
agency memorandums.” Id. at 1058. The panel also
held, unanimously, that while the FAA was not obli-
gated to search APTMetrics’ records in response to
Rojas’s FOIA request, the agency failed to establish
that the search it conducted of its own records was
reasonably calculated to locate all responsive docu-
ments. Id. at 1053-54, 1059 (majority opinion); id. at
1060 (Christen, J., concurring in part and dissenting
in part). Thus, the panel reversed the district court’s
entry of summary judgment in the FAA’s favor. Id. at
1059-60.

A majority of the non-recused active judges voted

to rehear the case en banc, principally to decide
whether our circuit should adopt or reject the consult-
ant corollary to Exemption 5.

II1

Exemption 5 permits an agency to withhold “in-

ter-agency or intra-agency memorandums or letters
that would not be available by law to a party … in
litigation with the agency.” 5 U.S.C. § 552(b)(5).

1 Judges Graber, Rawlinson, Callahan, M. Smith, Ikuta,

and Collins join in this part of the majority opinion.
 13a
Successful invocation of the exemption requires an
agency to show that a document (1) is “inter-agency”
or “intra-agency” in character, and (2) consists of ma-
terial that would be protected as privileged in the civil
discovery context. Sears, 421 U.S. at 149. We address
each of these requirements in turn.

APTMetrics is not a federal agency in its own

right, see 5 U.S.C. §§ 551(1), 552(f)(1), so the three
documents it prepared and sent to the FAA cannot be
deemed “inter-agency” memorandums. At first blush,
documents prepared by APTMetrics would not appear
to qualify as “intra-agency” memorandums either.
“Intra” means “within,” and read in isolation, “the
most natural meaning of the phrase ‘intra-agency
memorandum’ is a memorandum that is addressed
both to and from employees of a single agency.” De-
partment of Justice v. Julian, 486 U.S. 1, 18 n.1 (1988)
(Scalia, J., dissenting). But as is always true when in-
terpreting statutes, statutory context and purpose
matter, and here we think context and purpose sug-
gest that Congress had in mind a somewhat broader
understanding of “intra-agency.”

Read in context, the term “intra-agency” in Ex-

emption 5 does not definitively resolve the interpre-
tive question before us. Even accepting that “intra-
agency” refers in this context to a document generated
and kept in-house, that still does not tell us who
counts as being in-house for purposes of the exemp-
tion’s reach. The term could be read as requiring that
both the author and recipient of the document be em-
ployees on the agency’s payroll. But it could just as
 14a
plausibly be read to include certain outside consult-
ants whom the agency has hired to work in a capacity
functionally equivalent to that of an agency employee.

Deciding which of these two interpretations of “in-

tra-agency” Congress had in mind should be in-
formed, in our view, by consideration of the purposes
served by Exemption 5. The exemption protects an
agency’s internal communications (as well as commu-
nications with other agencies) if those communica-
tions would be protected by one of the civil discovery
privileges, such as the attorney-client privilege, the
attorney work-product privilege, or the deliberative
process privilege. See Sears, 421 U.S. at 149. Congress
concluded that shielding privileged communications
from disclosure was desirable because “the ‘frank dis-
cussion of legal or policy matters’ in writing might be
inhibited if the discussion were made public,” with the
consequence that the quality of an agency’s decisions
and policies “would be the poorer as a result.” Id. at
150 (quoting S. Rep. No. 89-813, at 9 (1965)). In the
same vein, the Court observed in Sears that “those
who expect public dissemination of their remarks may
well temper candor with a concern for appearances …
to the detriment of the decisionmaking process.” Id.
at 150-51 (quoting United States v. Nixon, 418 U.S.
683, 705 (1974)) (emphasis omitted). In addition,
without the protection afforded by Exemption 5, an
agency’s litigation opponents could obtain under
FOIA the same privileged communications they were
barred from obtaining under civil discovery rules.
Asked whether the statute created such an “anom-
aly,” the Court said no, stating: “We do not think that
Congress could have intended that the weighty poli-
cies underlying discovery privileges could be so easily
 15a
circumvented.” United States v. Weber Aircraft Corp.,
465 U.S. 792, 801-02 (1984).

A Congress whose aim was to further the pur-

poses just discussed would not have limited Exemp-
tion 5’s coverage to communications authored by
agency employees. Outside consultants would pre-
sumably be just as hesitant as agency employees to
engage in frank discussion of legal and policy matters
if they know that their advice and analysis may be
made public, with the same detrimental effect on the
quality of the agency’s decision-making. And an
agency’s litigation opponents could use FOIA to cir-
cumvent civil discovery privileges just as effectively
whether the privileged communications to be dis-
closed were between the agency and its outside con-
sultants or between agency employees. Reading Ex-
emption 5 to exclude communications with outside
consultants altogether, as Rojas urges us to hold,
would require us to assume that Congress saddled
agencies with a strong disincentive to employ the ser-
vices of outside experts, even when doing so would be
in the agency’s best interests. We see no evidence to
support that assumption in FOIA’s text or its legisla-
tive history.

The implausibility of Rojas’s interpretation of the

phrase “intra-agency memorandums”—as mandating
authorship by agency employees—is illustrated per-
haps most starkly in the context of an agency’s hiring
of outside counsel to represent it in litigation. Under
ordinary privilege rules, the agency’s litigation oppo-
nent could not, of course, demand disclosure of writ-
ten communications between the agency and its out-
side attorney or production of the attorney’s work-
 16a
product. Yet under Rojas’s reading of Exemption 5, all
of those otherwise privileged materials would be sub-
ject to public disclosure under FOIA—at the request
of the agency’s litigation opponent or anyone else. It
seems doubtful that Congress intended the term “in-
tra-agency” in Exemption 5 to exclude outside attor-
neys, because doing so would, for all practical pur-
poses, preclude agencies from relying on the services
of outside counsel in most instances. Indeed, even Ro-
jas appears to acknowledge that outside attorneys
must be deemed “within” an agency for purposes of
Exemption 5, but he offers no principled basis on
which an agency’s outside attorneys could be distin-
guished from other outside consultants hired to assist
in carrying out the agency’s functions.

Given these considerations, we do not agree that

Rojas’s reading of the term “intra-agency” is the only
textually permissible interpretation of Exemption 5’s
scope. While we are mindful of our obligation to con-
strue FOIA’s exemptions narrowly, we must at the
same time give them “a fair reading,” just as we would
any other statutory provision. Food Marketing Insti-
tute v. Argus Leader Media, 139 S. Ct. 2356, 2366
(2019). In our view, a fair reading of the term “intra-
agency” is the one acknowledged by the Supreme
Court in Department of Interior v. Klamath Water Us-
ers Protective Association, 532 U.S. 1 (2001). There,
without accepting or rejecting the consultant corol-
lary, the Court noted the then-uniform view of lower
courts that, in certain circumstances, “consultants
may be enough like the agency’s own personnel to jus-
tify calling their communications ‘intra-agency.’” Id.
at 12. As Justice Scalia stated in Julian, that reading
of Exemption 5 is not only “textually possible” but also
 17a
“much more in accord with the purpose of the provi-
sion.” Julian, 486 U.S. at 18 n.1 (Scalia, J., dissent-
ing). We therefore join the six other circuits that have
recognized some version of the consultant corollary to
Exemption 5.2

As for identifying those consultants who “may be

enough like the agency’s own personnel to justify call-
ing their communications ‘intra-agency,’” the Su-
preme Court’s decision in Klamath provides helpful
guidance. Although the Court did not endorse the con-
sultant corollary, it distilled general principles
gleaned from lower court decisions that we think de-
fine the outer boundaries of Exemption 5’s reach. To
be deemed “within” an agency for purposes of Exemp-
tion 5, a consultant must be hired by the agency to
perform work in a capacity similar to that of an em-
ployee of the agency, such that “the consultant func-
tions just as an employee would be expected to do.”
Klamath, 532 U.S. at 10-11. That means the consult-
ant must “not represent an interest of its own, or the
interest of any other client, when it advises the

2 See Soucie v. David, 448 F.2d 1067, 1078 n.44 (D.C. Cir. 1971);
Government Land Bank v. General Services Administration, 671
F.2d 663, 665 (1st Cir. 1982); Lead Industries Association, Inc. v.
OSHA, 610 F.2d 70, 83 (2d Cir. 1979); Hanson v. U.S. Agency for
International Development, 372 F.3d 286, 292-93 (4th Cir. 2004);
Wu v. National Endowment for Humanities, 460 F.2d 1030, 1032
(5th Cir. 1972); Stewart v. Department of Interior, 554 F.3d 1236,
1245 (10th Cir. 2009); cf. Brockway v. Department of Air Force,
518 F.2d 1184, 1194 (8th Cir. 1975) (holding that Exemption 5
includes some witness statements provided to the Air Force as
part of an investigation). The only circuit arguably to question
the validity of the consultant corollary thus far is the Sixth. See
Lucaj v. FBI, 852 F.3d 541, 548-49 (6th Cir. 2017).
 18a
agency that hires it.” Id. at 11. Its obligations must be
solely “to truth and its sense of what good judgment
calls for.” Id.

Because the scope of Exemption 5 turns on the

character of the document at issue—it is the memo-
randum or letter that must be “intra-agency”—these
principles should be applied on a document-by-docu-
ment basis. The relevant inquiry asks not whether
the “consultant functions just as an employee would
be expected to do” in a general sense, but rather
whether the consultant acted in a capacity function-
ally equivalent to that of an agency employee in cre-
ating the document or documents the agency seeks to
withhold.

Applying these general principles here, we con-

clude that APTMetrics created the three documents
at issue while performing work in the same capacity
as an employee of the FAA. The FAA’s Office of the
Chief Counsel asked APTMetrics to prepare summar-
ies of its validation work to assist the agency’s law-
yers in defending the validity of the 2015 biographical
assessment. In creating each of the three documents,
APTMetrics functioned no differently from agency
employees who, although possessing less expertise,
could have been tasked by the FAA’s lawyers with
preparing the same summaries. See Rojas, 927 F.3d
at 1063 (Christen, J., concurring in part and dissent-
ing in part). APTMetrics represented neither its own
interests nor those of any other client in carrying out
its work, and it did not share the documents with an-
yone outside the FAA’s Office of the Chief Counsel,
just as agency employees would have been expected to
keep sensitive documents of this sort in-house. With
 19a
respect to preparation of the summaries, then, APT-
Metrics was operating enough like the FAA’s own em-
ployees to justify calling its communications with the
FAA “intra-agency.” See Klamath, 532 U.S. at 12.3

Because we conclude that the documents at issue

qualify as intra-agency memorandums, we must next
consider whether they satisfy Exemption 5’s second
requirement: that the documents “would not be avail-
able by law to a party … in litigation with the agency.”
5 U.S.C. § 552(b)(5). This phrase has been construed
to incorporate civil discovery privileges including, as
relevant here, the attorney work-product privilege.
See Sears, 421 U.S. at 148-49. After conducting our
own in camera review of the documents at issue, we
agree with the district court that two of the three doc-
uments listed in the Vaughn index are protected by
the attorney work-product privilege and thus would
not be subject to discovery in civil litigation with the
FAA. However, a remand is necessary to determine

3 A different result might follow if the documents at issue

had been the validation studies themselves. According to the
FAA, APTMetrics performed the validation work in its capacity
as an “outside expert” hired to provide independent validation of
the 2015 biographical assessment. As APTMetrics’ outsider sta-
tus was essential to this work, APTMetrics could not have acted
in a capacity equivalent to that of the FAA’s own employees
when it validated the test. Put differently, it is far from clear
that an agency may tout the independent validation provided by
“outside experts” and at the same time claim that those experts
are “within” the agency for purposes of Exemption 5.
 20a
whether the third document is also protected by the
privilege.

A document is privileged as attorney work-prod-

uct when it was prepared (1) “in anticipation of litiga-
tion or for trial,” and (2) “by or for another party or by
or for that other party’s representative.” In re Grand
Jury Subpoena, 357 F.3d 900, 907 (9th Cir. 2004).

As to the first requirement, the FAA’s declara-

tions adequately explained why two of the three doc-
uments were prepared in anticipation of litigation. In
April 2014, an unsuccessful applicant for a position as
an air traffic controller filed a complaint against the
FAA on behalf of a class of other unsuccessful appli-
cants. In November 2014, lawyers in the FAA’s Office
of the Chief Counsel asked APTMetrics to prepare
“summaries and explanations” of the work it had done
to validate the revised 2015 version of the biograph-
ical assessment. According to the declarations sub-
mitted by the FAA, APTMetrics sent its initial re-
sponse to the Office of the Chief Counsel in December
2014 and followed up with a supplemental response
in January 2015.

As Rojas notes, the April 2014 complaint chal-

lenged the FAA’s use of the 2014 version of the bio-
graphical assessment, not the 2015 version of the test
that is the subject of the documents at issue. But the
FAA planned to use a revised version of the 2014 test
to perform a similar screening function during the
2015 hiring cycle, so it was reasonable for the agency
to anticipate litigation concerning use of the revised
2015 biographical assessment as well. The documents
that APTMetrics sent to the Office of the Chief
 21a
Counsel in December 2014 and January 2015 were
prepared in anticipation of that litigation.

The FAA’s declarations do not address the one re-

maining document, which is described in the Vaughn
index as a document prepared by APTMetrics dated
September 2, 2015. The declaration from the FAA’s
lawyer states that the Office of the Chief Counsel re-
ceived responses to its request for summaries of APT-
Metrics’ validation work in December 2014 and Janu-
ary 2015. It makes no mention of a third document
received at a later date. Moreover, in camera review
of the document suggests that it may have been
drafted as a response to a request for information
from an outside third party, rather than as an inter-
nal memorandum from APTMetrics to the FAA’s law-
yers. As a result, on this record the FAA failed to carry
its burden of establishing that this document was pre-
pared in anticipation of litigation.

Rojas objects that, even if APTMetrics’ December

2014 and January 2015 summaries qualify as attor-
ney work-product, the firm did not conduct the under-
lying validation studies in anticipation of litigation.
But application of the attorney work-product privi-
lege does not turn on whether the records underlying
the summaries were created in anticipation of litiga-
tion. What matters is that the summaries themselves
were created in anticipation of litigation, since those
are the documents the FAA seeks to withhold.

Regarding the privilege’s second requirement, the

December 2014 and January 2015 summaries were
prepared for the FAA by APTMetrics. The work-prod-
uct privilege covers not only documents prepared by a
 22a
party but also documents prepared by others acting
on the party’s behalf. United States v. Nobles, 422
U.S. 225, 238-39 & n.13 (1975); see also Fed. R. Civ.
Proc. 26(b)(3)(A) (listing a party’s “consultant” among
those who may prepare a document subject to work-
product protection). That the summaries were pre-
pared by APTMetrics on the FAA’s behalf, rather
than by the FAA itself, poses no barrier to application
of the work-product privilege.

Because the December 2014 and January 2015

validation summaries are intra-agency memoran-
dums that would be subject to the attorney work-
product privilege in litigation with the FAA, the FAA
properly withheld them under Exemption 5. We va-
cate the district court’s entry of summary judgment
for the FAA as to the third document, dated Septem-
ber 2, 2015, and remand for further proceedings with
respect to that document.

III4

Rojas raises two arguments concerning the ade-

quacy of the FAA’s search for responsive documents.
We agree with the three-judge panel’s unanimous res-
olution of both arguments.

First, Rojas contends that the FAA should have

been required to search APTMetrics’ records for doc-
uments responsive to his FOIA request, since such a
search would undoubtedly have turned up the data

4Chief Judge Thomas and Judges Wardlaw, Rawlinson, M.

Smith, Hurwitz, and Collins join in this part of the majority opin-
ion.
 23a
underlying APTMetrics’ validation work as well as
the validation studies themselves, rather than just
the summaries of those studies included in the FAA’s
Vaughn index. Like the three-judge panel, we are
sympathetic to Rojas’s argument. See Rojas, 927 F.3d
at 1059. It seems counterintuitive to hold that an out-
side consultant may be deemed “within” a federal
agency for purposes of invoking Exemption 5, but that
documents created by the consultant on the agency’s
behalf may be outside the scope of the search FOIA
requires. Nonetheless, existing Supreme Court prece-
dent forecloses Rojas’s contention.

FOIA authorizes a court to compel disclosure of

“agency records.” 5 U.S.C. § 552(a)(4)(B). The Su-
preme Court has held that agency records must have
been created or obtained by the agency and must be
in the agency’s control at the time the FOIA request
is made. Department of Justice v. Tax Analysts, 492
U.S. 136, 144-45 (1989). Documents that are not in an
agency’s possession do not constitute “agency records”
even if the agency could have obtained them by asking
a third party to produce them. Id. at 144. Given this
precedent, the FAA properly limited the scope of its
search to records in the agency’s possession; it had no
obligation to search records in APTMetrics’ posses-
sion.

Second, Rojas argues that the declarations sub-

mitted by the FAA fail to show that it “conducted a
search reasonably calculated to uncover all relevant
documents,” as our cases require. Zemansky v. EPA,
767 F.2d 569, 571 (9th Cir. 1985). To satisfy this re-
quirement, the FAA’s declarations had to be “noncon-
clusory” and “relatively detailed in their description
 24a
of the files searched and the search procedures” fol-
lowed. Id. at 573. But here, the FAA submitted just
one declaration describing the scope of the search, and
it stated only that the search conducted by the Office
of the Chief Counsel “was reasonably calculated to ob-
tain responsive records because the attorneys who
provided legal advice related to the revisions to the
[air traffic controller] hiring process were asked to re-
view their records.”

The FAA’s declaration falls short of what our

cases require because it offers no details about how
the search was conducted. For example, it does not
describe, even in general terms, the number of attor-
neys involved, the search methods they used, the body
of records they examined, or the total time they spent
on the search. Cf. Lane v. Department of Interior, 523
F.3d 1128, 1139 (9th Cir. 2008); Citizens Commission
on Human Rights v. FDA, 45 F.3d 1325, 1328 (9th Cir.
1995). Without details such as these, we are in no po-
sition to conclude that the agency’s search was rea-
sonably calculated to locate all responsive records. See
Steinberg v. Department of Justice, 23 F.3d 548,
551-52 (D.C. Cir. 1994) (declaration found inadequate
because it “fail[ed] to describe in any detail what rec-
ords were searched, by whom, and through what pro-
cess”).

* * *

We join six of our sister circuits in adopting the

consultant corollary to Exemption 5, and we hold that
the FAA properly withheld two of the three docu-
ments at issue here under that exemption. However,
the FAA did not establish that the remaining
 25a
document is protected by the attorney work-product
privilege, and the agency failed to show that it con-
ducted a search reasonably calculated to locate all
documents responsive to Rojas’s FOIA request. We
vacate the district court’s entry of summary judgment
in the FAA’s favor and remand for further proceed-
ings consistent with this opinion.

Rojas’s motion for judicial notice (Dkt. No. 7) is

DENIED.

AFFIRMED in part, VACATED in part, and

REMANDED for further proceedings.

The parties shall bear their own costs.

COLLINS, Circuit Judge, concurring:

I concur in the majority opinion, which adopts the

reading of Exemption 5 endorsed by Justice Scalia
(joined by two other Justices) in his dissenting opin-
ion in United States Department of Justice v. Julian,
486 U.S. 1 (1988). Under that reading, Exemption 5’s
reference to “intra-agency memorandums” extends to
“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,” such
as a “consultant to the agency.” Id. at 18 n.1 (Scalia,
J., dissenting).1 I write separately to respond to the

1 In Julian, the Supreme Court held that, even assuming

that the documents in question were “‘inter-agency’ records for
purposes of Exemption 5,” see 486 U.S. at 11 n.9, they were not
exempt from disclosure because, at least as to the requesters in
that case, the additional requirements of Exemption 5 were not
met, see id. at 11-14. Justice Scalia dissented from that latter
 26a
dissents’ erroneous contentions that Justice Scalia’s
reading of Exemption 5 is “atextual,” see Wardlaw
Dissent at 33; that it “rewrites” Exemption 5, see id.;
that it uses “legislative purpose to override statutory
text,” see Bumatay Dissent at 58; and that, ulti-
mately, he (and we) “simply made it up,” id. at 61.

The relevant text of Exemption 5 states that

FOIA’s disclosure requirements do not apply to “inter-
agency or intra-agency memorandums or letters that
would not be available by law to a party other than an
agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). The dissents assume that, by using the
term “intra-agency,” the statute is “crystal clear” in
referring only to memoranda prepared by “‘employees
of a single agency,’” see Wardlaw Dissent at 35, 36
(emphasis added) (citation omitted), and “leave[s] no
room for documents created by those outside of an
agency’s employment,” see Bumatay Dissent at 53
(emphasis added). But as Justice Scalia recognized, to
the extent that this employment-based reading might
seem to be the “most natural meaning of the phrase
‘intra-agency memorandum,’” that is true only if one
examines that phrase “[a]part from its present con-
text.” Julian, 486 U.S. at 18 n.1 (Scalia, J., dissenting)
(emphasis added). Here, there are two features of the

holding, and as a result, his dissent had to address the issue of

whether Exemption 5 was inapplicable on the alternative
ground that the documents were “not ‘inter-agency or intra-
agency memorandums’ within the meaning of Exemption 5.” Id.
at 18 n.1 (Scalia, J., dissenting); see also id. at 11 n.9 (majority
opinion) (majority did “not find it necessary” to reach this issue).
 27a
statutory text that, considered in context, point away
from the dissents’ narrow, employment-based reading
of Exemption 5.

First, the dissents overlook the fact that the ac-

tual words of the statute require only that the “mem-
orandum[]” be “intra-agency,” not necessarily that the
authors and recipients be formal employees of that
agency. 5 U.S.C. § 552(b)(5) (emphasis added). As the
Supreme Court recognized in Department of the Inte-
rior v. Klamath Water Users Protective Ass’n, 532 U.S.
1 (2001), this feature of the statutory language plainly
allows for a reading under which “consultants may be
enough like the agency’s own personnel to justify call-
ing their communications ‘intra-agency.’” Id. at 12
(emphasis added).2 Thus, while the Court in Klamath
did not decide whether Justice Scalia’s reading of Ex-
emption 5 was correct, see 532 U.S. at 12 (specifically
reserving the question), the Court recognized that, at
the very least, Justice Scalia was right in contending
that his view rested on a “permissible … reading of
the statute,” Julian, 486 U.S. at 18 n.1 (Scalia, J. dis-
senting) (emphasis added). As the Klamath Court ex-
plained, the reason why consultants might be enough
like employees “to justify calling their

2 The Supreme Court’s apt phrasing of this alternative per-

missible reading refutes the dissents’ strawman arguments that
this construction rests either on a “geographical” or “location”
condition, see Bumatay Dissent at 55 n.5, or on the view that any
document in the agency’s possession (from any source) is, with-
out more, an “intra-agency” memorandum, see Wardlaw Dissent
at 44-44. Nothing in Justice Scalia’s dissent in Julian, or in the
Supreme Court’s description of his view in Klamath, adopts the
dissents’ caricatures.
 28a
communications ‘intra-agency’” is that “the consult-
ant does not represent an interest of its own, or the
interest of any other client, when it advises the
agency that hires it. 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 em-
ployee would be expected to do.” 532 U.S. at 11-12 (em-
phasis added).3 Accordingly, the dissents’ contention
that the words of the statute “clearly” and “precisely”
require authorship by a formal employee—as opposed
to someone acting in some other “governmentally con-
ferred capacity,” Julian, 486 U.S. at 18 n.1 (Scalia, J.,
dissenting)—is simply incorrect. See Wardlaw Dis-
sent at 35-35; Bumatay Dissent at 35-36.4

Second, the dissents overlook the remainder of

the statutory language in Exemption 5, which further
elucidates the types of documents protected by that
provision. The intra-agency memorandums covered
by Exemption 5 are those “that would not be available
by law to a party other than an agency in litigation
with the agency.” 5 U.S.C. § 552(b)(5) (emphasis
added). As the text suggests, this language “simply

3 By contrast, Klamath held that the same was not true with
respect to a self-interested party who communicates with an
agency to further its own, independent interests, and such a
party’s communications with the agency thus could not be said
to be “intra-agency.” 532 U.S. at 12-13.

4 For the same reason, Judge Bumatay is wrong in suggest-

ing that it is “not clear how else Congress could have expressed
its rejection” of Justice Scalia’s view. See Bumatay Dissent at 60.
Had Congress wanted to limit the excluded memoranda to only
those authored by agency “employees,” it could certainly have
added language specifically stating that.
 29a
incorporates civil discovery privileges.” United States
v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984); see
also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154
(1975) (“It is equally clear that Congress had the at-
torney’s work-product privilege specifically in mind
when it adopted Exemption 5[.]”). Consequently, in
determining whether a communication is within the
agency for purposes of Exemption 5, it makes sense to
consider whether the communication to the agency is
from a person whose “governmentally conferred ca-
pacity,” Julian, 486 U.S. at 18 n.1 (Scalia, J., dissent-
ing), is one that can bring it within the agency’s litiga-
tion privileges. On that score, it is highly relevant that
“there is no question that litigants need not produce
materials covered by the attorney-client privilege or
documents that constitute attorney work-product, in-
cluding those prepared by the party’s agents and con-
sultants.” Rojas v. FAA, 927 F.3d 1046, 1062 (9th Cir.
2019) (Christen, J., concurring in part and dissenting
in part) (emphasis added) (collecting cases).5

The dissents nonetheless argue that Exemption 5

should be restricted to employee-authored memo-
randa because, unlike Exemptions 4 and 8, the text of
Exemption 5 does not expressly refer to documents
from non-employees. See Wardlaw Dissent at 35-36;
Bumatay Dissent at 58 n.6. But it is of no relevance
that the very different categories of documents

5 Contrary to what the dissents suggest, this does not mean

that the term “‘intra-agency’ does no work at all.” See Bumatay
Dissent at 55 n.5; see also Wardlaw Dissent at 44. It simply
means that, in choosing between two permissible readings of “in-
tra-agency,” one should not lose sight of the entirety of the stat-
utory language and what it reveals about the statute’s purpose.
 30a
covered by Exemption 4, 5 U.S.C. § 552(b)(4) (“trade
secrets and commercial or financial information ob-
tained from a person and privileged or confidential”),
and Exemption 8, id. § 552(b)(8) (matters “contained
in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision
of financial institutions”), use language that includes
various types of documents created by persons that
everyone would agree are outsiders. Exemption 5 does
not follow the same approach and therefore would not
be expected to use similar language. It instead applies
to “intra-agency memorandums,” and the question
here is what communications by whom and for what
purpose count as such. Put another way, the fact that
Exemption 5 does not broadly sweep in certain cate-
gories of outsider-created documents does not some-
how mean that only employee-authored documents
count as “intra-agency” documents. Because the
wording and aim of the provisions are so different,
this is not a situation in which Congress otherwise
used very similar language in multiple different pro-
visions, but then chose to omit a particular term in
one of those multiple instances. Cf. Russello v. United
States, 464 U.S. 16, 23 (1983). Here, the wording of
the three exemptions is so completely dissimilar that
the comparative inference the dissents try to draw is
unwarranted.

The dissents are thus wrong in contending that

Exemption 5’s reference to “intra-agency memoran-
dums” excludes, as a textual matter, the broader
reading of Exemption 5 adopted by Justice Scalia in
Julian.
 31a
II

Moreover, as Justice Scalia also recognized, his

refusal to read Exemption 5 as limited to employee-
authored documents is not only a “permissible” read-
ing but a “desirable” one. Julian, 486 U.S. at 18 n.1
(Scalia, J., dissenting). Limiting the provision to only
those documents authored by formal employees “ex-
cludes many situations where Exemption 5’s purpose
of protecting the Government’s deliberative process is
plainly applicable.” Id. It is therefore “textually possi-
ble and 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.” Id. And in the case
before us, as in Julian, “[h]ere we have … memo-
rand[a] that fit[] readily within this definition.” Id.

The dissents contend that this consideration of

the “purpose” of Exemption 5 disregards “the textual-
ist revolution,” see Wardlaw Dissent at 38, and
amounts to an “‘escape route from the prison of the
text,’” see Bumatay Dissent at 54 (quoting Antonin
Scalia & Bryan A. Garner, Reading Law: The Inter-
pretation of Legal Texts 19 (2012) (“Reading Law”)).
These charges are unfounded, as is the contention
that Justice Scalia in Julian betrayed the very “prin-
ciples that [he] spent a lifetime advocating,” see id. at
12.

The “fair reading” method of textualism that Jus-

tice Scalia endorsed “requires an ability to compre-
hend the purpose of the text, which is a vital part of
 32a
its context.” Reading Law, supra, at 33. “But the pur-
pose is to be gathered only from the text itself, con-
sistently with the other aspects of its context.” Id.
(emphasis added). Here, of course, the purpose of Ex-
emption 5 to protect the Government’s litigation priv-
ileges is express on the face of the statute itself, which
explicitly describes the exemption in terms of when a
document “would not be available by law to a party …
in litigation with the agency.” 5 U.S.C. § 552(b)(5). It
is no lapse into purposivism to insist that, in choosing
among the permissible readings that the text will
bear, a “textually permissible interpretation that fur-
thers rather than obstructs the [statute’s] purpose
should be favored.” Reading Law, supra, at 63. The
dissents’ employment-based reading of “intra-agency
memorandums” would plainly obstruct Exemption 5’s
purpose to protect the Government’s litigation privi-
leges, and because there is a permissible reading of
the text that avoids this outcome, it is to be preferred.6

6 Judge Bumatay is also wide of the mark in chastising the

majority for supposedly “rel[ying] on legislative history to deter-
mine Congress’s purpose in enacting FOIA exemptions.” See
Bumatay Dissent at 59. The referenced portion of the majority
opinion quotes a Supreme Court case identifying the “purpose”
of Exemption 5 based on the Supreme Court’s reliance on legis-
lative history. See Maj. Opin. at 13-14 (quoting Sears, 421 U.S.
at 150). I share Justice Scalia’s criticism of the use of legislative
history, but as a judge of an “inferior Court[]” to the “one su-
preme Court,” see U.S. CONST. art. III, § 1, I cannot fault the
majority for faithfully following controlling Supreme Court prec-
edent telling us what the purpose of Exemption 5 is, even if that
precedent relies on legislative history. And, as I have explained,
the text of Exemption 5 itself amply confirms the Supreme
Court’s point in Sears that Exemption 5’s purpose is to protect
 33a
Neither dissent seriously disputes that the em-
ployee-only reading of Exemption 5 would impede its
express purpose by, for example, requiring disclosure
of attorney-client communications with any outside
counsel. Judge Bumatay instead sidesteps the prob-
lem by noting that attorney-client materials are not
at issue on the particular facts of this case and that
the FAA presumably does not rely on outside counsel.
See Bumatay Dissent at 62-63. But FOIA has a wide
reach, and there are entities (such as, for example, the
FDIC) that count as “agencies” for purposes of FOIA
and that use outside counsel frequently enough to
have written guidelines on the subject. See FDIC, “In-
formation for Prospective Outside Counsel,”
<https://www.fdic.gov/buying/legal/ocbrochure/infor-
mation-for-prospective- outside-counsel.pdf>.7

Judge Wardlaw, by contrast, does not avoid the

implications of the employee-only reading of Exemp-
tion 5. Instead, to the extent that this reading would
allow FOIA to vitiate “even attorney-client materi-
als,” Judge Wardlaw views that as simply the price to
pay to “ensure[] that the workings of the Executive

confidential communications protected by “civil discovery privi-

leges.” See Maj. Opin. at 13.

7 Judge Bumatay suggests that the implications of his posi-

tion may not be as ominous as they seem for such agencies, be-
cause he speculates that maybe all of their outside counsel are
actually formally designated as “special Government employ-
ees.” See Bumatay Dissent at 63 n.9. However, he cites nothing
to support this speculation, which seems at odds with the FDIC’s
outside-counsel handbook as well as with the applicable FDIC
regulations, which designate them as “contractors.” See 12
C.F.R. pt. 366.
 34a
Branch are transparent to the American people.” See
Wardlaw Dissent at 44-46. Indeed, Judge Wardlaw
erroneously disregards the purpose of Exemption 5 al-
together, treating it as always subordinate to FOIA’s
overarching aim of disclosure—so much so that, un-
der her view, we must adopt any pro-disclosure read-
ing of the text, apparently without regard to any other
textual canons. See id. at 41. This flawed analysis
overlooks the fact that FOIA’s “exemptions are as
much a part of FOIA’s purposes and policies as the
statute’s disclosure requirement.” Food Mktg. Inst. v.
Argus Leader Media, 139 S. Ct. 2356, 2366 (2019)
(simplified); see also Reading Law, supra, at 168
(“[L]imitations on a statute’s reach are as much a part
of the statutory purpose as specifications of what is to
be done.”). And here, of course, it is the text of an ex-
emption that is at issue.

III

Because Justice Scalia’s reading of Exemption 5

is both “textually possible and much more in accord
with the purpose of the provision,” Julian, 486 U.S. at
18 n.1 (Scalia, J., dissenting), I agree with the major-
ity’s endorsement of that reading. And the dissents
are thus wrong in insisting that the statutory text re-
quires this court to create a 6-1 circuit split by jetti-
soning 50 years of settled case law that Congress has
never seen fit to reject.8 Cf. Monessen Sw. Ry. Co. v.

8 Judge Wardlaw wrongly contends that the Sixth Circuit in

Lucaj v. FBI, 852 F.3d 541 (6th Cir. 2017), “cast serious doubt on
whether the consultant corollary can be found in Exemption 5’s
text.” See Wardlaw Dissent at 39. The target of the Sixth Cir-
cuit’s criticism was the distinct (and much broader) “common-
interest doctrine,” on which the FBI had relied in that case. 852
 35a
Morgan, 486 U.S. 330, 338 (1988) (“Congress’ failure
to disturb a consistent judicial interpretation of a
statute may provide some indication that Congress at
least acquiesces in, and apparently affirms, that in-
terpretation.” (simplified)).

WARDLAW, Circuit Judge, with whom THOMAS,

Chief Judge, and HURWITZ, Circuit Judge, join, con-
curring in part and dissenting in part:

Less than two years ago, the Supreme Court

reemphasized that federal courts must interpret and
apply FOIA in accordance with that statute’s plain
text and structure. See Food Mktg. Inst. v. Argus
Leader Media, 139 S. Ct. 2356, 2362-63 (2019). That
lesson rings particularly true when, as here, FOIA’s
plain text aligns with FOIA’s presumption of govern-
ment transparency. See Milner v. Dep’t of Navy, 562
U.S. 562, 571 (2011). But today, the majority ignores
these principles, embraces an atextual “consultant
corollary” doctrine, and, in doing so, rewrites FOIA

F.3d at 547-48. In rejecting the FBI’s contention, the Sixth Cir-

cuit reasoned that “when the Department of the Interior made
the same argument in Klamath, the Supreme Court rejected it.”
Id. at 548. Given that the Supreme Court in Klamath expressly
declined to reject the so-called “consultant corollary,” the “same
argument” that was rejected by both the Sixth Circuit and the
Supreme Court cannot have been that doctrine. Rather, as the
Sixth Circuit explained, it and the Supreme Court rejected the
view “‘that “intra-agency” is a purely conclusory term, just a la-
bel to be placed on any document the Government would find it
valuable to keep confidential’”—which is a fair description of the
common-interest doctrine. Id. (quoting Klamath, 532 U.S. at 12).
As a result, with today’s en banc decision, there is now no circuit
split on the “consultant corollary.”
 36a
Exemption 5. For these reasons, I respectfully dis-
sent.1

I.

FOIA grants the public a qualified statutory right

of access to federal agency “records.” See 5 U.S.C.
§ 552(a)(3)(A), (b). Thus, when a member of the public
“requests” records from an agency, the agency must
disclose those records “unless they fall within one of
nine exemptions.” Milner, 562 U.S. at 565.

Exemption 5, at issue here, shields from disclo-

sure “inter-agency or intra-agency memorandums or
letters that would not be available by law to a party
other than an agency in litigation with the agency … ”
5 U.S.C. § 552(b)(5). By its plain terms then, this ex-
emption applies only if the “communication” being
sought is “inter-agency or intra-agency.” Dep’t of Inte-
rior v. Klamath Waters Users Protective Ass’n, 532
U.S. 1, 9 (2001). The majority rightly acknowledges
that the documents sought here are not “inter-
agency” because APTMetrics—the outside consulting
firm that prepared these documents—is “not a federal
agency in its own right.” Maj. Op. at 12. Thus, this
case hangs on whether the documents APTMetrics
prepared and transmitted to the FAA count as “intra-
agency” memorandums or letters.”

In answering that question, the “proper starting

point lies in a careful examination of the ordinary
meaning and structure of the law itself.” Argus

1 Because I agree with the majority that the FAA’s search

for records was inadequate, I join part III of the majority opinion.
 37a
Leader, 139 S. Ct. at 2364. We therefore turn to
FOIA’s text. FOIA itself defines the term “agency.” 5
U.S.C. §§ 551(1), 552(f). “With exceptions not relevant
here,” that word “means ‘each authority of the Gov-
ernment of the United States,’ and ‘includes any exec-
utive department, military department, Government
corporation, Government controlled corporation, or
other establishment in the executive branch of the
Government …, or any independent regulatory
agency.’” Klamath, 532 U.S. at 9 (quoting 5 U.S.C.
§§ 551(1), 552(f)). Nothing in this definition provides
a textual hook for thinking of outside contractors as
part of a federal agency.

As for “intra,” FOIA nowhere defines that term.

“So, as usual” and as with other “undefined terms in
FOIA[,]” we look to this term’s “ordinary, contempo-
rary, common meaning [] when Congress enacted
FOIA in 1966.” Argus Leader, 139 S. Ct. at 2362 (in-
ternal quotation marks and citations omitted). Much
as it does now, the term “intra” then meant “in” or
“within,” Black’s Law Dictionary 957 (Rev. 4th Ed.
1968); Webster’s Seventh New Collegiate Dictionary
444 (1961), or perhaps “in the interior,” Webster’s Sec-
ond New Int’l Dictionary of the Eng. Language 1302
(1959). Coupled with FOIA’s definition of “agency,”
the term “intra-agency” clearly signals the idea of be-
ing “in” or “within” a federal agency. The question
then becomes what Congress meant when it joined
that understanding of “intra-agency” to the words
“memorandums or letters.”

In this regard, the Supreme Court has acknowl-

edged that “the most natural meaning of the phrase
‘intra-agency memorandum’ is a memorandum that is
 38a
addressed both to and from employees of a single
agency.” Klamath, 532 U.S. at 9 (internal quotation
marks and citation omitted). In other words, intra-
agency memorandums and letters are circulated
within—and only within—an agency. This makes
good sense, for “[n]either the terms of [Exemption 5]
nor the statutory definitions say anything about com-
munications with outsiders.” Id.; see also John C.
Brinkerhoff Jr., FOIA’s Common Law, 36 Yale J. on
Reg. 575, 583 (2019) (“It is doubtful that any reason-
able reading of ‘inter-agency or intra-agency’ could
encompass third parties.”).

Exemption 5’s silence on communications and

documents from outsiders is especially notable be-
cause other FOIA exemptions explicitly include such
communications and documents. Exemptions 4 and 8
expressly encompass information generated outside
of a federal agency. See 5 U.S.C. § 552(b)(4) (permit-
ting the withholding of “trade secrets and commercial
or financial information obtained from a person and
privileged or confidential” (emphasis added)); id.
§ 552(b)(8) (shielding from disclosure information
“contained in or related to examination, operating, or
condition reports prepared by, on behalf of, or for the
use of an agency responsible for the regulation or su-
pervision of financial institutions” (emphasis added)).
Congress thus knew how to specify that FOIA exemp-
tions cover documents from outside third parties, and
it did so in these other exemptions. See Dep’t of Home-
land Sec. v. MacLean, 574 U.S. 383, 392 (2015). That
Exemptions 4 and 8 explicitly speak to this issue—but
Exemption 5 does not—makes clear that Exemption 5
applies only to records that originate and remain in-
side the federal government.
 39a
What’s more, reading “intra-agency memoran-
dums or letters” to cover the exchange of documents
within a federal agency runs parallel to the judicial
interpretation of “inter-agency … memorandums or
letters.” With the word “inter-agency,” “Congress
plainly intended to permit one agency possessing de-
cisional authority to obtain written recommendations
and advice from a separate agency not possessing
such decisional authority without requiring that the
advice be any more disclosable than similar advice re-
ceived from within the agency.” Renegotiation Bd. v.
Grumman Aircraft Eng’g Corp., 421 U.S. 168, 188
(1975). Congress thus permitted the withholding of
memorandums or letters exchanged “between” agen-
cies, just as its use of the word “intra-agency” allows
for the withholding of memorandums or letters ex-
changed “within” agencies.

In short, Exemption 5’s text is crystal clear: docu-

ments or communications exchanged with outside
consultants do not fall within that exemption. For
“outside consultants” are, by definition, not “within” a
federal agency. They are independent contractors,
hired to assist an agency with a finite task that the
agency has decided to outsource. Indeed, APTMetrics
and its employees may have worked alongside the
FAA’s employees in this case, but it and its employees
are not an arm of the Executive Branch. Our judicial
inquiry should thus be at an end. Argus Leader, 139
S. Ct. at 2364.

II.

“So where did the [consultant corollary] come

from?” Id. (emphasis in original). The answer is a
 40a
piece of untethered dicta (Footnote 44 to be exact) in
a D.C. Circuit case from the early 1970’s. See Soucie
v. David, 448 F.2d 1067, 1078 n.44 (D.C. Cir. 1971).
Footnote 44 spoke into existence the consultant corol-
lary without examining either Exemption 5’s text or
FOIA’s overarching structure.2 The Soucie court in-
stead sought to discern Congress’s purpose in enact-
ing Exemption 5, and then considered what other sit-
uations not covered by Exemption 5’s text could ben-
efit from a similar rationale. Yet, as we all know by
now, such an “approach is a relic from a bygone era of
statutory construction.” Argus Leader, 139 S. Ct. at
2364 (internal quotation marks and citation omitted).

Still, “judicial inertia” proved a powerful thing.

Rojas v. Fed. Aviation Admin., 927 F.3d 1046, 1057
(9th Cir. 2019), reh’g en banc granted. What Soucie’s
Footnote 44 set in motion, the Fifth Circuit continued
in Wu v. National Endowment for Humanities, 460
F.2d 1030 (5th Cir. 1972). Again, that court did not
bother to confront Exemption 5’s text or FOIA’s struc-
ture. Id. at 1032. It simply quoted Soucie and moved
along. Id. The First and Second Circuits soon fell in
line, relying on Soucie, Wu, and later Fifth Circuit

2 Footnote 44 states: “The rationale of the exemption for in-

ternal communications indicates that the exemption should be
available in connection with the Garwin Report even if it was
prepared for an agency by outside experts. The Government may
have a special need for the opinions and recommendations of
temporary consultants, and those individuals should be able to
give their judgments freely without fear of publicity. A document
like the Garwin Report should therefore be treated as an intra-
agency memorandum of the agency which solicited it.” Soucie,
448 F.2d at 1078 n.44.
 41a
cases that cited Wu rather than conducting any sort
of textual or structural analysis for themselves. See
Gov’t Land Bank v. Gen. Servs. Admin., 671 F.2d 663,
665 (1st Cir. 1982); Lead Indus. Ass’n, Inc. v. OSHA,
610 F. 2d 70, 83 (2d Cir. 1979). Meanwhile, the D.C.
Circuit paid lip service to Exemption 5’s text in Ryan
v. Department of Justice, 617 F.2d 781 (D.C. Cir.
1980), but interpreted that text “in light of [Exemp-
tion 5’s] purpose,” id. at 789, which it divined from
legislative history, and the judicial “common sense”
espoused in Wu and Soucie, id. at 790 & n.30; see also
Brinkerhoff, supra, at 614 (“[O]nce a court made an
initial interpretation, others could simply cite that de-
cision rather than re-explain the tensions between
FOIA’s text and diverging doctrine.”).

The Supreme Court watched these developments

from a distance. In 1988, in the early days of the tex-
tualist revolution, three dissenting justices suggested
in a footnote without much analysis that the consult-
ant corollary doctrine, though not the “most natural
meaning” of Exemption 5, was “a permissible and de-
sirable reading of the statute.” U.S. Dep’t of Just. v.
Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J., dissent-
ing). Those justices did not, however, explain why this
meaning was “textually possible,” what “the purpose
of” Exemption 5 was, or why that purpose should
trump the exemption’s plain text. Id.

Thirteen years later in Klamath, a unanimous

Court brought this debate into somewhat sharper fo-
cus. On the one hand, it acknowledged that “neither
the terms of [Exemption 5] nor the statutory defini-
tions say anything about communications with out-
siders.” Klamath, 532 U.S. at 9. It further affirmed
 42a
that the words “inter-agency or intra-agency” in Ex-
emption 5 are not “purely conclusory term[s]” and
that there exists no “textual justification for draining
the [inter-agency or intra-agency requirement] of in-
dependent vitality.” Id. at 12. On the other hand, the
Court quoted the footnote in Justice Scalia’s Julian
dissent to highlight the previously advanced argu-
ment in favor of the consultant corollary doctrine. See
id. at 9-10. But the Court had no occasion to settle this
controversy in Klamath, see id. at 12, and resolved
that case on other grounds, see id. at 12-15.

The debate surrounding the consultant corollary

doctrine and its variants has remained unsettled in
the wake of Klamath. One court of appeals has fallen
in line with the Soucie consensus, though based on a
clear misreading of Klamath. See Stewart v. U.S.
Dep’t of Interior, 554 F.3d 1236, 1244 (10th Cir. 2009)
(stating incorrectly that Klamath had definitively
“recogniz[ed] that Exemption 5 extends to govern-
ment agency communications with paid consult-
ants”). Another applied the doctrine without analyz-
ing Klamath at all, Hanson v. U.S. Agency for Int’l
Dev., 372 F.3d 286, 291-94 (4th Cir. 2004), and, over
a dissent, has since extended Exemption 5 even fur-
ther, far beyond the bounds of the consultant corol-
lary, Hunton & Williams v. U.S. Dep’t of Just., 590
F.3d 272, 279-80 (4th Cir. 2010). Only the Sixth Cir-
cuit has bucked the Soucie trend and, at the least, cast
serious doubt on whether the consultant corollary can
be found in Exemption 5’s text. See Lucaj v. Fed. Bu-
reau of Invest., 852 F.3d 541, 548-49 (6th Cir. 2017)
(refusing to read Exemption 5’s plain text to embrace
the common interest doctrine and implying that the
consultant corollary suffers from similar defects).
 43a
Meanwhile, even within circuits that have embraced
the consultant corollary, there remain clear misgiv-
ings. See, e.g., Nat’l Inst. of Military Just. v. Dep’t of
Def., No. 06-5242, 2008 WL 1990366, at *1 (D.C. Cir.
April 30, 2008) (Tatel, J., concurring in the denial of
rehearing en banc) (“I continue to believe that the doc-
uments at issue here fall outside the protection of Ex-
emption 5 of the Freedom of Information Act because
they cannot plausibly be described as ‘intra-
agency’ …”).

If you expected a long and storied history of care-

ful analysis and reasoning to lie behind the consultant
corollary, you probably feel disappointed. Readers fa-
miliar with FOIA might even feel a sense of déjà vu in
all this. As in Milner and Argus Leader, a decades-old
D.C. Circuit decision that contained no meaningful
analysis of FOIA’s text gave birth to an atextual doc-
trine. And as in those cases, other circuits followed
the D.C. Circuit’s lead without meaningful analysis of
the text or structure of Exemption 5. We can only
speculate as to where this will end.

III.

To its credit, the majority opinion acknowledges

that adopting the consultant corollary is not the most
natural reading of Exemption 5. Maj. Op. at 12. Its
analysis laudably does more than blindly cite to
Soucie, Wu, or their progeny. However, it can only
adopt the consultant corollary by distorting Exemp-
tion 5’s context and legislative purpose. Maj. Op. at
13. None of this analysis was necessary given Exemp-
tion 5’s plain text, and perhaps worse, none of it holds
up to careful scrutiny.
 44a
On every level, FOIA’s statutory context cuts
against the consultant corollary. At the highest level,
“disclosure, not secrecy, is the dominant objective of”
FOIA, Klamath, 532 U.S. at 8, and “Congress un-
doubtedly sought to expand public rights of access to
Government information” through this Act, Forsham
v. Harris, 445 U.S. 169, 178 (1980). The statute thus
contains multiple different mechanisms to facilitate
government transparency. See 5 U.S.C.
§ 552(a)(1)-(3), (5). “This pro-disclosure framework is
deliberate” and embodies “the power of frustration re-
flected in congressional distrust for agency withhold-
ing[,]” Brinkerhoff, supra, at 577 (internal quotation
marks and citation omitted), which stemmed from the
litany of government abuses before FOIA and the Wa-
tergate scandal, see 1 O’Reilly, Fed. Info. Disclosure
§§ 2:2, 3:8 (2018).

Zooming in to focus on the context of FOIA’s ex-

emptions is similarly unhelpful to the majority’s
cause. These nine limited exemptions are “explicitly
made exclusive and must be narrowly construed.”
Milner, 562 U.S. at 564 (internal quotation marks and
citations omitted); see also 5 U.S.C. § 552(d). There-
fore, even if there are two equally plausible readings
of a given FOIA exemption, we must favor the one
that promotes government transparency—not se-
crecy. See Dep’t of Air Force v. Rose, 425 U.S. 352, 366
(1976) (“FOIA requires us to choose that interpreta-
tion most favoring disclosure.”); John Doe Agency v.
John Doe Corp., 493 U.S. 146, 164 (1989) (Scalia, J.,
dissenting) (“[O]ur doctrine of ‘narrowly construing’
FOIA exemptions requires that ambiguity to be re-
solved in favor of disclosure.”).
 45a
If anything, then, statutory context dooms the
majority’s reading of Exemption 5. Although the plain
text of the word “intra-agency” should alone resolve
this case, the majority (wrongly) views this word as
having two equally plausible interpretations. Maj.
Op. at 13. One interpretation reads Exemption 5 nar-
rowly, rejects the consultant corollary, and thus fa-
vors disclosure; the other does the exact opposite.
That dichotomy should make our job easy. Because
the tie goes to disclosure, so to speak, we should side
with the narrow interpretation of “intra-agency” and
refuse to adopt the consultant corollary. See Rose, 425
U.S. at 366.

Instead, the majority’s “tiebreaker” is a myopic

reading of the purposes behind Exemption 5. To be
sure, that exemption reflects a justifiable policy con-
cern with protecting an agency’s internal delibera-
tions and preventing the disclosure of certain privi-
leged documents. See Klamath, 532 U.S. at 8-9;
United States v. Weber Aircraft Corp., 465 U.S. 792,
801 (1984). But “the point” of Exemption 5 “is not to
protect Government secrecy pure and simple,” and
thus “the first condition of Exemption 5 is no less im-
portant than the second; the communication must be
‘inter-agency or intra-agency.’” Klamath, 532 U.S. at
9; Brinkerhoff, supra, at 584 (explaining that Con-
gress did not transfer the privileges existing prior to
FOIA’s enactment to Exemption 5 “unscathed”). In
other words, Exemption 5 protects from disclosure
only certain privileged agency documents—i.e., those
that are inter- or intra-agency.

In this respect, it is notable that the cases from

which the majority surmises the purpose of
 46a
Exemption 5 all predate Klamath. Maj. Op. at 13-14.
Before Klamath, the Supreme Court’s Exemption 5
cases had addressed only half of the Exemption 5 in-
quiry. See 532 U.S. at 8 (“Our prior cases on Exemp-
tion 5 have addressed the second condition, incorpo-
rating civil discovery privileges.”). Klamath thus
marked the first time that the Supreme Court ad-
dressed the full purpose of Exemption 5, and the
Court there specifically warned against draining Ex-
emption 5’s “intra-agency or inter-agency” require-
ment of “independent vitality.” Id. at 12.

That Congress intended Exemption 5 to protect

less than the full universe of privileged government
documents is also far from surprising. Early drafts of
FOIA immunized even fewer of these documents from
disclosure. They shielded only “agency internal mem-
oranda used in disposing of adjudicatory or rulemak-
ing matters[,]” and refused to protect even “routine
internal agency correspondence.” 1 O’Reilly, Fed. Info.
Disclosure § 2:3. Of course, the Executive Branch
balked at this language, and a compromise was ulti-
mately reached. See id. § 15:2. Together, the political
branches drew a new line at “intra-agency or inter-
agency memorandums or letters that would not be
available by law to a party other than an agency in
litigation with the agency.” 5 U.S.C. § 552(b)(5); see
also 1 O’Reilly, Fed. Info. Disclosure § 15:2. The re-
lease of some privileged documents through FOIA is
thus by no means the aberration the majority sug-
gests, but a long-planned feature of FOIA. See Kla-
math, 532 U.S. at 16 (“Congress had to realize that
not every secret under the old law would be secret un-
der the new.”).
 47a
Judge Collins’s concurrence makes a similar mis-
step, though he frames this argument as a contextual
reading of the word “intra-agency” rather than one
based on legislative purpose. Collins Concurrence at
26-27. However, as already explained, that Exemp-
tion 5’s text envisions protecting some privileged doc-
uments from disclosure by no means signals that Con-
gress intended to withhold from scrutiny all such doc-
uments. Cf. Klamath, 532 U.S. at 11-12 (“From the
recognition of this interest in frank communication,
which the deliberative process privilege might pro-
tect, the Department would have us infer a sufficient
justification for applying Exemption 5 to communica-
tions with the Tribes, … But the Department’s argu-
ment skips a necessary step, for it ignores the first
condition of Exemption 5, that the communication be
‘intra-agency or inter-agency.’”); id. at 16 (“FOIA’s
mandate of broad disclosure … was obviously ex-
pected and intended to affect Government opera-
tions.”).

Finally, as already explained, Exemption 5’s use

of the word “intra-agency” does not protect just any
memorandum or letter within an agency, regardless
of whether its authors and recipients were agency em-
ployees. Collins Concurrence at 24. But two addi-
tional points are worth emphasizing. First, such a
reading would render the term “intra-agency …
purely conclusory” and without “independent vital-
ity,” id. at 32, for every document potentially subject
to a FOIA request is “within” an agency, see U.S. Dep’t
of Just. v. Tax Analysts, 492 U.S. 136, 142, 144-46
(1989). Second, that reading would also cause courts
to read Exemption 5’s parallel terms “intra-agency”
and “inter-agency” in asymmetric ways. Intra-agency
 48a
memorandums or letters would merely need to be
physically (or digitally) within an agency, while inter-
agency memorandums or letters would need to have
been exchanged between agencies. Reading these
terms, located in the same sentence, to diverge in such
a manner runs counter to a faithful interpretation of
FOIA’s text. See United States v. Williams, 553 U.S.
285, 294 (2008) (“[A] word is given more precise con-
tent by the neighboring words with which it is associ-
ated.”).

IV.

All that remains at this point is a consequentialist

argument based on a fear of the quantity and types of
government documents that may enter the public do-
main if we take Congress at its word in Exemption 5.
As judges, we are former lawyers, and it is only natu-
ral that our instincts lead us away from the possibility
that Congress authorized the disclosure of sensitive
documents—for instance, attorney work-product or
even attorney-client materials. See Maj. Op. at 15.
And to be sure, Exemption 5, like all FOIA exemp-
tions, plays an important role in FOIA’s statutory
scheme. See Argus Leader, 139 S. Ct. at 2366; Collins
Concurrence at 31. But, we must respect the statutory
scheme that Congress created and read Exemption 5
as Congress wrote it; we cannot “tak[e] a red pen to
the statute” and “cut[] out some words and past[e] in
others.” Milner, 562 U.S. at 573 (internal quotation
marks and citation omitted); see also Argus Leader,
139 S. Ct. at 2366 (“[W]e cannot properly expand Ex-
emption 4 beyond what its terms permit[;] we cannot
arbitrarily constrict it either.”). Indeed, “[b]y suggest-
ing that our interpretation of Acts of Congress
 49a
adopted [five decades] ago should be inflected based
on the costs of enforcing them today, the [majority]
tips its hand.” McGirt v. Oklahoma, 140 S. Ct. 2452,
2481 (2020).

Besides, “dire warnings are just that, and not a

license for us to disregard the law.” Id. If Congress
has had a change of heart, it can always amend FOIA,
which it has proven itself more than willing to do. See,
e.g., OPEN FOIA Act of 2009, Pub L. No. 111-83,
§ 564, 123 Stat. 2142, 2184 (2009); Electronic Free-
dom of Information Act Amendments of 1996, Pub. L.
No. 104-231, 110 Stat. 3048 (1996). Congress has
amended FOIA in the wake of judicial rulings it does
not like, see 1 O’Reilly, Federal Information Disclo-
sure § 3:9, and has even “amended FOIA when it
wanted to stop the use of FOIA as an end run around
discovery,” Brinkerhoff, supra, at 595 n.154 (collect-
ing sources discussing Congress’s “1987 amendments
to Exemption 7” stemming from “a gang member’s use
of FOIA to discover law enforcement information”).

And, should Congress allow an honest reading of

Exemption 5’s text to stand, pessimism need not rule
the day. “In FOIA, after all, a new conception of Gov-
ernment conduct was enacted into law, a general phi-
losophy of full agency disclosure.” Klamath, 532 U.S.
at 16 (internal quotation marks and citation omitted).
“Congress believed that this philosophy, put into
practice, would help ‘ensure an informed citizenry, vi-
tal to the functioning of a democratic society.’” ’Tax
Analysts, 492 U.S. at 142 (1989) (quoting NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)).
Giving Exemption 5 its fair compass, and nothing
more, lives up to these ideals, and ensures that the
 50a
workings of the Executive Branch are transparent to
the American people.

V.

Like so many other courts of appeals, today our

court disregards the plain text of Exemption 5 and
continues a long history of judicial deference to Exec-
utive secrecy. Because I disagree with that approach
and do not think we should perpetuate this interpre-
tation of Exemption 5, I respectfully dissent.

THOMAS, Chief Judge, concurring in part and dis-

senting in part:

I join Judge Wardlaw’s dissent in full. I also agree

with the majority opinion’s holding that the Federal
Aviation Administration (“FAA”) did not meet its bur-
den to show that it conducted an adequate search for
documents responsive to Jorge Rojas’s Freedom of In-
formation Act (“FOIA”) request. I write separately to
observe that, even if the consultant corollary formed
part of Exemption 5, it would not protect the specific
information sought in this case.

Rojas’s FOIA request was for “information re-

garding the empirical validation” of the FAA’s 2015
“biographical assessment[.]” These types of validation
studies are addressed in the United States Equal Em-
ployment Opportunity Commission’s Uniform Guide-
lines on Employee Selection Procedures. See generally
29 C.F.R. pt. 1607. The Uniform Guidelines require
that any employment screening test that results in
adverse impact on members of any race, sex, or ethnic
group must be validated by study, and the Uniform
 51a
Guidelines establish detailed criteria for such valida-
tion studies. 29 C.F.R. §§ 1607.3(A), 1607.5.

Most importantly for our purposes, the Uniform

Guidelines require employers and agencies to main-
tain documentation of the validation studies and
make the studies available for review. Specifically,
the Uniform Guidelines provide that “[a]ny employer
… which uses a selection procedure as a basis for any
employment decision” “should maintain and have
available” documentation of the selection procedure’s
adverse impact, if any, and evidence of its validity. 29
C.F.R. §§ 1607.5(D), 1607.15, 1607.16(W).

The FAA has recognized its obligation under the

Uniform Guidelines to conduct validation studies and
maintain them. Indeed, the FAA’s Deputy Assistant
Administrator for Human Resource Management tes-
tified before Congress that compliance with the Uni-
form Guidelines “is legally an obligation we have as
an agency,” and that the FAA’s consultants accord-
ingly had “done the validation work to ensure that the
[biographical assessment] is valid.” A Review of the
Federal Aviation Administration’s Air Traffic Con-
troller Hiring, Staffing, and Training Plans: Hearing
Before the Subcomm. on Aviation of the H. Comm. on
Transp. & Infrastructure, 114th Cong. 21 (2016). Fur-
ther, the FAA has repeatedly confirmed that both the
2014 and 2015 biographical assessments had been
validated. A document that an agency is required to
produce and maintain is not a document prepared in
anticipation of litigation. See Am. Civ. Liberties Union
of N. Cal. v. U.S. Dep’t of Just., 880 F.3d 473, 485-86
(9th Cir. 2018). Thus, Exemption 5 cannot shield the
validation studies from disclosure under FOIA.
 52a
In this case, the record indicates that the FAA has
either conducted an inadequate search for documents
it actually possesses or has disregarded the Uniform
Guidelines’ instructions to “maintain and have avail-
able” evidence of the biographical assessment’s vali-
dation by leaving it in APTMetrics’ possession and at-
tempting to shield it from disclosure under FOIA. 29
C.F.R. §§ 1607.5(D), 1607.15. An agency cannot avoid
its responsibility to conduct and maintain employ-
ment screening test validation studies by placing the
studies in third-party hands and claiming that the
studies were prepared in anticipation of litigation.
Such a practice would violate the Uniform Guidelines
and frustrate FOIA’s “policy of broad disclosure of
Government documents[.]” Fed. Bureau of Investiga-
tion v. Abramson, 456 U.S. 615, 621 (1982).

Of course, the present record is not fully devel-

oped on these issues, and the instant appeal is limited
to summaries of the studies, but the district court will
have the opportunity to revisit these issues on re-
mand.

In sum, I agree with Judge Wardlaw that FOIA’s

Exemption 5 does not afford “consultant corollary”
protection for documents exchanged with a non-gov-
ernmental entity. However, even if the consultant cor-
ollary could be grafted onto Exemption 5, it would not
protect the information Rojas sought in his FOIA re-
quest because the information was required to be
maintained and made publicly available by the
agency.

Therefore, I respectfully concur in part and dis-

sent in part.
 53a
IKUTA, Circuit Judge, with whom GRABER and
CALLAHAN, Circuit Judges, join, and BUMATAY,
Circuit Judge, joins except as to footnote 1, dissenting
in part:

I write separately because I disagree with the ma-

jority’s conclusion that the declaration submitted by
the FAA failed to show that the agency “conducted a
search reasonably calculated to uncover all relevant
documents” in response to Rojas’s FOIA request.
Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985)
(cleaned up).1

“In response to a FOIA request, government agen-

cies must conduct a reasonable search to find any doc-
uments responsive to the request.” Hamdan v. Dep’t
of Justice, 797 F.3d 759, 770 (9th Cir. 2015). A search
is reasonable if it is “reasonably calculated to uncover
all relevant documents.” Zemansky, 767 F.2d at 571
(citation omitted). “An agency can demonstrate the
adequacy of its search through ‘reasonably detailed,
nonconclusory affidavits submitted in good faith.’”
Hamdan, 797 F.3d at 770 (quoting Zemansky, 767
F.2d at 571). “Affidavits submitted by an agency to
demonstrate the adequacy of its response are pre-
sumed to be in good faith.” Id. In short, our standard

1 I otherwise agree with the majority’s interpretation of “in-

tra-agency memorandums or letters” to include documents pre-
pared by outside consultants hired by the agency to assist in car-
rying out the agency’s functions. Therefore, I would affirm the
district court’s summary judgment order for the FAA as to the
first two withheld documents, and reverse as to the third docu-
ment for the reasons stated in the majority opinion.
 54a
requires the agency to make a “reasonable search” in
light of the FOIA request at issue. See id.

Here, Rojas’s FOIA request was limited to the fol-

lowing:

I am requesting information regarding the

empirical validation of the biographical as-
sessment noted in the rejection notification.
This includes any report created by, given to,
or regarding APTMetrics’ evaluation and
creation and scoring of the assessment.

Only the search undertaken by the FAA’s Office

of the Chief Counsel is at issue in this appeal. The Of-
fice of Chief Counsel’s involvement in the Air Traffic
Control Specialists (ATCS) hiring process was limited
to requesting and obtaining a summary of APT-
Metrics’ “validation work related to the use of the [Bi-
ographical Assessment] as an instrument in the
ATCS selection process,” in connection with potential
future litigation. This assignment to APTMetrics was
narrowly focused: According to the FAA’s Vaughn in-
dex, only three documents related to this assignment
were found in the FAA’s legal office.

Given this context, asking the lawyers in the of-

fice who had been assigned to provide legal advice re-
garding the revisions to the ATCS hiring process to
search their files for responsive documents would be
a reasonable response to Rojas’s FOIA request.

And that was exactly what the Office of the Chief

Counsel did. Yvette Armstead, the Assistant Chief
Counsel at the Office of the Chief Counsel’s
 55a
Employment and Labor Law Division (AGC-100), is
the lawyer responsible for providing “legal advice re-
lated to the hiring process for [ATCS] at the Federal
Aviation Administration.” According to her declara-
tion, which we presume to be in good faith:

AGC-100 conducted a second search for doc-

uments responsive to Plaintiff’s request
within our office. This search was reasona-
bly calculated to obtain responsive records
because the attorneys who provided legal ad-
vice related to the revisions to the ATCS hir-
ing process were asked to review their rec-
ords.

There is no dispute that the search described in

this simple statement was reasonable under the cir-
cumstances. Rojas does not challenge the scope or
methods of the search described in this statement.
Nor has Rojas argued that the FAA should have ex-
panded its search or found specific categories of addi-
tional documents. Cf. Lahr v. Nat’l Transp. Safety
Bd., 569 F.3d 964, 988 (9th Cir. 2009) (rejecting the
claim that the government’s searches were inade-
quate because they failed to uncover documents refer-
enced in produced records); Lane v. Dep’t of Interior,
523 F.3d 1128, 1139 (9th Cir. 2008) (same). While we
have indicated that an agency’s search might be in-
sufficient if “other databases are likely to turn up the
information requested” or if a standard search turns
up leads “that suggest other records might be located
elsewhere,” Hamdan, 797 F.3d at 772, Rojas does not
suggest there was any such deficiency here. Rojas’s
FOIA request did not require a search of thousands of
 56a
files or massive electronic databases, and Rojas does
not argue otherwise.

Given the limited search required by Rojas’s

FOIA request, the agency’s simple description of its
search provided reasonably adequate detail. It de-
scribes who was asked to conduct a search—the attor-
neys who were involved in the ATCS hiring process
revisions, i.e., the only persons in the Office of the
Chief Counsel who would have responsive documents.
It also describes the search methods used and the
body of records examined: the attorneys reviewed
their files for relevant documents. In the context of
this particular search, nothing more was required to
provide a reasonable description of the files searched
or the search procedure used.

The majority fails to provide any reasonable anal-

ysis or explanation for its contrary—and conclusory—
holding that the FAA’s declaration “falls short” of
what is required. Maj. at 22. Instead of explaining
why the FAA’s description of its search was not “rea-
sonably detailed” in the particular context of this
case, see Hamdan, 797 F.3d at 770, the majority
makes a rote recital that the declaration “offers no de-
tails about how the search was conducted,” because it
fails to describe “the number of attorneys involved,
the search methods they used, the body of records
they examined, or the total time they spent on the
search.” Maj. at 22. This criticism is not reasonable.
The declaration provides all relevant information: the
office that conducted the search, the persons asked to
conduct the search, the search procedure, and the
search scope. Although the declaration does not state
how many attorneys were involved, or how much time
 57a
was spent on their search, the majority fails to explain
why the lack of such details here makes the infor-
mation that was provided fatally inadequate. While
more details may be needed to demonstrate the ade-
quacy of a search involving large databases in multi-
ple locations and with numerous custodians, it is not
reasonably required in this context.

Nor does our precedent support the majority’s

conclusions. The cases cited by the majority merely
reviewed the agency declarations and approved them.
Maj. at 22 (citing Lane, 523 F.3d at 1139; Citizens
Commission on Human Rights v. FDA, 45 F.3d 1325,
1328 (9th Cir. 1995)). We have never held that specific
details were required or that the absence of such de-
tails would render a declaration per se insufficient.
Our case law requires only that an affidavit be “rea-
sonably detailed.” Hamdan, 797 F.3d at 770. What
constitutes a “reasonably detailed” affidavit must—
reasonably—depend on the context of the particular
search. By ignoring the context, the majority requires
an agency to incant magic words, and ignores our
touchstone of reasonableness under the circum-
stances.

Because the declaration here is “reasonably de-

tailed” to establish that the FAA’s search was ade-
quate in the circumstances presented here, the FAA
is entitled to summary judgment on this issue as a
matter of law.

BUMATAY, Circuit Judge, concurring in part and

dissenting in part:
 58a
Our task should have been simple. Exemption 5
of the Freedom of Information Act (“FOIA”) protects
only “inter-agency or intra-agency memorandums or
letters” from disclosure under the Act. 5 U.S.C.
§ 552(b)(5). As Justice Scalia stated, “the most natu-
ral meaning of the phrase ‘intra-agency memoran-
dum’ is a memorandum that is addressed both to and
from employees of a single agency” and an “inter-
agency memorandum” is “a memorandum between
employees of two different agencies.” U.S. Dep’t of
Justice v. Julian, 486 U.S. 1, 18 n.1 (1988) (Scalia, J.,
dissenting). These definitions leave no room for docu-
ments created by those outside of an agency’s employ-
ment. To me, that is the end of the inquiry and Ex-
emption 5 doesn’t cover consultant work product.

But finding Congress’s work inadequate, the ma-

jority picks up its drafting pen and bestows on us a
supposedly better law. Contending that Congress ac-
tually adopted sub silentio a “consultant corollary”
through the otherwise clear language of Exemption 5,
the majority now rules that the government no longer
needs to publicly disclose documents made by private-
sector consultants for executive agencies.

How does the majority justify this judicial re-

write? It’s purpose all the way down. The majority cre-
ates an “escape route from the prison of the text,”2 by
invoking Exemption 5’s supposed purpose and impos-
ing a more faithful—as the majority sees it—version

2 Antonin Scalia & Bryan Garner, Reading Law: The Inter-

pretation of Legal Texts 39 (2012) (“Reading Law”) (quoting Pat-
rick Devlin, The Judge 16 (1979)).
 59a
of the law. But invocation of purpose is nothing more
than a “bald assertion of an unspecified and hence un-
bounded judicial power to ignore what the law says.”
Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1077
(2020) (Thomas, J., dissenting) (quoting Reading Law
343).

Because I do not believe that our limited judicial

role allows us to subvert the plain text of a law to our
own sense of its purpose, I respectfully dissent.

I.

APTMetrics, a private consulting firm independ-

ent of the federal government, developed assessment
tests for hiring air traffic controllers for the Federal
Aviation Administration. Jorge Rojas, a rejected ap-
plicant, filed suit under FOIA seeking three docu-
ments summarizing the assessment tests created by
APTMetrics.3 The FAA sought to withhold the docu-
ments under Exemption 5.4 But APTMetrics, all

3 That the documents at issue were summaries rather than

the test themselves makes little difference under the plain
meaning of Exemption 5. The exemption focuses on who created
the memorandums or letters, not on their purpose or substance.
But see Maj. Op. 18 n.3 (finding that the documents were sum-
maries to be critical).

4 Exemption 5 states, in full:

This section does not apply to matters that

are— … inter-agency or intra-agency memo-
randums or letters that would not be availa-
ble by law to a party other than an agency in
litigation with the agency, provided that the
deliberative process privilege shall not apply
 60a
agree, is not an agency under FOIA. See 5 U.S.C.
§ 551(1) (An “agency” must be an “authority of the
Government of the United States.”). Nor has the FAA
argued that APTMetrics consultants are so embedded
within its structure that they should be deemed FAA
employees.5 By its plain text then, Exemption 5
doesn’t protect APTMetrics’s documents from disclo-
sure.6

to records created 25 years or more before the

date on which the records were requested[.]

5 U.S.C. § 552(b)(5). A document, thus, must satisfy two condi-

tions to qualify as a FOIA withholding exemption. See Dep’t of
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8
(2001). Since the first condition—being an “intra-agency memo-
randum[]”—is not met in this case, I do not address the second
condition.

Rather, it is the opposite. The FAA purposefully held out

5

APTMetrics as “outside experts” who developed and inde-

pendently validated the assessment tests.

6 With respect, I believe Judge Collins’s interpretation of

Exemption 5 suffers from two flaws. First, Judge Collins seems
to view “intra-agency memorandums” as merely a geographical
condition—only requiring that the memorandum “be intra-
agency,” meaning within the agency. See Collins Concurrence at
24. Setting aside that no one would ever use the word “intra-
agency” as a location, FOIA only applies if the document is
within the agency in the first place. See Berry v. Dep’t of Justice,
733 F.2d 1343, 1349 (9th Cir. 1984) (limiting “agency records” to
information “in the possession of an agency”). So this interpreta-
tion effectively reads the term out of the statute. It’s also unclear
how Judge Collins’s location-based reading applies to “inter-
agency” memorandums—does it mean that the document is sim-
ultaneously present in two agencies?
 61a
The majority disputes none of this; yet, it con-
cludes that Exemption 5 applies nonetheless based on
FOIA’s supposed purpose and a desire to avoid the pa-
rade of horribles it envisions if we were to give the
provision its plain meaning. The majority first divines
from FOIA’s legislative history that, despite the ex-
emption’s limited scope, Congress’s “purpose” was to
broadly “shield[] privileged communications from dis-
closure.” Maj. Op. 13. Second, the majority fears that
Exemption 5’s plain meaning would chill communica-
tions between consultants and government employ-
ees, resulting in “poorer” decisionmaking and policies.
Maj Op. 13 (quoting NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 150 (1975)). Finally, the majority thinks
an ordinary-meaning interpretation of the provision

Second, Judge Collins believes Exemption 5’s second condi-

tion—that the document would not be “available by law to a
party”—means that “intra-agency memorandum” refers to any
document that falls “within the agency’s litigation privileges.”
See Collins Concurrence at 26-27. Yet under this reading, “intra-
agency” does no work at all. And we turn grammar on its head if
we treat a limiting dependent phrase, like Exemption 5’s second
condition, as totally eliminating the words to which it is depend-
ent.

At the end of the day, even if Judge Collins’s interpretation

were permissible, I continue to believe our duty is to “seek the
best reading of the statute by interpreting the words of the stat-
ute, taking account of the context of the whole statute, and ap-
plying the agreed upon semantic canons.” Brett M. Kavanaugh,
Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2121
(2016) (emphasis added). In this case, the best and “most natu-
ral” reading of the phrase is that the “memorandums” must be
“to and from employees of a single agency.” Julian, 486 U.S. at
18 n.1 (Scalia, J., dissenting).
 62a
would potentially vitiate the attorney-work-product
privilege of an agency’s outside counsel. Id. at 15.

To accommodate these considerations, the major-

ity engrafts a “consultant corollary” to Exemption 5,
whereby any document may now be subject to exemp-
tion if drafted by anyone “act[ing] in a capacity func-
tionally equivalent to that of an agency employee in
creating the document.” Maj. Op. 17.

II.

A.

In my view, we can never let perceived legislative

purpose eclipse the ordinary meaning of statutory
text. If a statute has a clear and natural reading, as
is the case here, we are stuck with that meaning—
even if we believe Congress might disagree with the
outcome in a particular case. This limited judicial role
derives directly from the structure of our Constitution
and separation-of-powers principles.

Lawmaking is not a tidy affair. It can be a

“clumsy, inefficient, even unworkable” process. INS v.
Chadha, 462 U.S. 919, 959 (1983). That is by design.
See id. The Constitution requires bicameralism—
meaning that legislation must pass both the House
and Senate with their respective rules and commit-
tees. Id. at 948-49 (citing Article I of the Constitution).
When Congress is at its full complement, it consists of
535 legislators from various backgrounds, regions,
and beliefs, split into two chambers with different
constituencies and political interests. Id. at 948-51;
Apportionment Act of 1911, 37 Stat. 13, 13-14;
 63a
Apportionment Act of 1929, 46 Stat. 21, 26-27. The
Constitution also requires presentment to the Presi-
dent, who provides a separate “national perspective”
to legislation. Chadha, 462 U.S. at 948 (simplified).

Given this, I am skeptical that the majority could

so easily discern the legislative purpose behind the
FOIA exemptions. When we sit en banc, we’re only 11
judges—yet, it is often difficult to find agreement
among our small number. It is doubtful that we could
extract a common purpose from a body almost 50
times as large, as the majority purports to do.

Legislation, moreover, is often about the art of

compromise. Even when Congress unites to tackle a
national issue, “its Members may differ sharply on the
means for effectuating that intent.” Bd. of Governors
of Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S.
361, 374 (1986). Given the clash of purposes, inter-
ests, and ideas, “the final language of the legislation
may reflect hard-fought compromises.” Id. After all,
no legislation pursues its purposes at all costs, so “it
frustrates rather than effectuates legislative intent
simplistically to assume that whatever furthers the
statute’s primary objective must be the law.” Pension
Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633,
646-47 (1990) (simplified). In other words, when we
allow legislative purpose to override statutory text,
we undo these legislative compromises and recali-
brate any balances struck by Congress. And we do so
 64a
without any limiting principle except our own discre-
tion.7

More troublesome still is the majority’s reliance

on legislative history to determine Congress’s purpose
in enacting FOIA exemptions. See Maj. Op. 13-14
(quoting a single Senate committee report to repre-
sent Congress’s intent to encourage “frank discussion
of legal and policy matters”). But there are significant
problems with using legislative history to single out
congressional intent. See Fazaga v. FBI, 965 F.3d
1015, 1081-82 (9th Cir. 2020) (Bumatay, J., dissenting
from denial of rehearing en banc). In any event,
judges have found other congressional purposes in
FOIA, too. For one, the Supreme Court has said that
the “core purpose” of FOIA is to “contribut[e] signifi-
cantly to public understanding of the operations or ac-
tivities of the government.” U.S. Dep’t of Def. v. Fed.
Labor Relations Auth., 510 U.S. 487, 495 (1994) (sim-
plified). That is why the Court has continuously

7 To be clear, this doesn’t mean we cannot interpret statutes

based on their context. If contextual clues help give meaning to
the words of the statute, we may readily employ them. See Read-
ing Law 153 (“Perhaps no interpretive fault is more common
than the failure to follow the whole-text canon, which calls on
the judicial interpreter to consider the entire text, in view of its
structure and of the physical and logical relation of its many
parts.”). For example, here, in FOIA, two other exemptions spe-
cifically authorize the non-disclosure of documents created by
non-government employees. See 5 U.S.C. § 552(b)(4), (8). That
Congress did not include such express language in Exemption 5
is strong contextual evidence against the so-called consultant
corollary. But what we can’t do is try to discern some overriding
extratextual policy purpose to then eclipse the plain meaning of
statutes.
 65a
reaffirmed that FOIA requires “full agency disclo-
sure” unless exempted under “clearly delineated stat-
utory language.” Id. (quoting Dep’t of Air Force v.
Rose, 425 U.S. 352, 360-61 (1976)).

If purpose rather than text governs, which pur-

pose prevails here? While some legislators may have
felt that protecting government privileges was of par-
amount importance, others may have believed that
achieving government transparency was more criti-
cal. As judges, we are not well-situated to step into
the shoes of our elected representatives and select a
purpose to guide our interpretation. See Diamond v.
Chakrabarty, 447 U.S. 303, 317 (1980) (“[T]he balanc-
ing of competing values and interests” requires “the
kind of investigation, examination, and study that
legislative bodies can provide and courts cannot.”).
That is exactly what the majority does, however, by
prophesying what Congress would have enacted if
only it better understood its own purposes. See, e.g.,
Maj. Op. 14 (“A Congress whose aim was to further
the purposes just discussed would not have limited
Exemption 5’s coverage to communications authored
by agency employees.”).

Indeed, Exemption 5’s limitation to inter- and in-

tra-agency materials may have been the compromise
between Congress’s dueling purposes. By ignoring its
plain meaning, we subvert any legislative compro-
mise baked into its enacted text. Furthermore, it’s not
clear how else Congress could have expressed its re-
jection of the consultant corollary. After all, the lan-
guage of Exemption 5 does precisely that—it leaves
no room for consultant documents to be exempted.
But that wasn’t enough for the majority. Perhaps, a
 66a
congressional amendment to Exemption 5—“and we
really mean it”—would suffice.

Most disconcerting about the approach articu-

lated by the majority is the threat to the separation of
powers. Any student of the Constitution can recite
that Congress makes the laws and judges interpret
them. See Patchak v. Zinke, 138 S. Ct. 897, 904 (2018)
(“To the legislative department has been committed
the duty of making laws; … and to the judiciary the
duty of interpreting and applying them[.]”). By read-
ing a statute not by its text, but its purpose, judges
come dangerously close to legislating—except without
the political accountability.

If there was any doubt about this concern, look no

further than the majority’s test for when a document
meets the “consultant corollary” exemption. It states
that any document drafted by anyone “act[ing] in a
capacity functionally equivalent to that of an agency
employee in creating the document” is subject to the
protection of Exemption 5. Maj. Op. 17. So instead of
the straightforward language used in Exemption 5,
citizens must now parse the majority’s newfangled,
multi-factor test8 to gain the disclosure of government
documents. While this test might make normative
sense, and congressional staffers might admire its

8 As I understand it, the majority’s consultant corollary test

requires (1) establishing what an “agency employee” does for a
particular agency; and (2) determining whether the consultant
acted in a “functionally equivalent” capacity. No doubt further
litigation will be required to refine the meaning of each step and
establish the prongs for each factor and, of course, the subprongs
to the prongs for each factor.
 67a
drafting, none of it is derived from the text of Exemp-
tion 5 or frankly any other legislation. We simply
made it up. Cf. California v. EPA, 978 F.3d 708, 718
(9th Cir. 2020) (“There is a word for picking the law
that determines a party’s future conduct: legisla-
tion[.]”) (emphasis omitted).

B.

The same goes for the majority’s concerns for the

consequences of interpreting Exemption 5 according
to its text. We don’t supersede or amend congressional
enactments simply because we (or our belief that Con-
gress would) disagree with the outcome in a particu-
lar case. Our job requires neutrality to a statute’s con-
sequences. See Griffin v. Oceanic Contractors, Inc.,
458 U.S. 564, 576 (1982) (“The remedy for any dissat-
isfaction with the results in particular cases lies with
Congress and not with th[e] [c]ourt[s].”). We don’t re-
verse engineer our interpretation of a law by survey-
ing the outcomes it produces and then selecting the
reading that reaches our favored results. That gets it
backwards. See Baker Botts LLP v. ASARCO LLC,
576 U.S. 121, 134 (2015) (A “harsh outcome” does not
justify deviating from “the import of Congress’ chosen
words.”). So it’s inappropriate to create a “consultant
corollary” based on fear that not doing so would dis-
courage outside consultants from working with agen-
cies. See Maj. Op. 14.

For what it’s worth, the majority’s overwrought

concern for the protection of an agency’s outside coun-
sel’s work product is also a bit of a red herring. See
Maj. Op. 15. First, that is not this case. APTMetrics
is not outside counsel and no one suggests it is the
 68a
functional equivalent of one. If such a case arises in
the future, we can decide whether the attorney-client
privilege is so sacrosanct that we must override
FOIA’s statutory text; but there is certainly no reason
to do that here. Second, I am not so sure that such a
case would arise. The FAA is not like a normal client.
It can’t just retain any lawyer of its choice. It is, after
all, an Executive agency. 49 U.S.C. § 106. It has a ca-
dre of lawyers in its chief counsel’s office.9 It sits
within the Department of Transportation with its
own team of lawyers. 49 U.S.C. § 106(a). And, by law,
the Department of Justice provides it legal counsel
and must represent it in all litigation. See 28 U.S.C.
§§ 514, 516; 5 U.S.C. § 3106. So, I seriously doubt that
the need to protect privileged communications of out-
side counsel is so grave and so stark that we must dis-
card the plain reading of the text enacted by Con-
gress.10

9 See Office of the Chief Counsel, Federal Aviation Admin-

istration, https://www.faa.gov/about/office_org/headquarters_of-
fices/agc/ (Sept. 19, 2017, 2:36 PM).

10 Judge Collins contends that we must confront the attor-

ney-client issue here because another agency—the FDIC—may
potentially need to rely on outside attorneys. See Collins Concur-
rence 30-31. I think this example only proves my point. Un-
known issues may pop up in such a situation. For example, the
FDIC guidelines governing outside counsel cited by Judge Col-
lins may impact our analysis. See id. at 30-31. We also don’t
know if these hypothetical outside counsel are hired as special
Government employees. See 18 U.S.C. § 2020(a). Or if other fed-
eral laws, such as conflicts and ethics requirements, apply to out-
side counsel. Point being, we don’t need to decide this question
in this case.
 69a
C.

I acknowledge that Justice Scalia, after analyzing

the “natural meaning” of Exemption 5, went on to con-
sider FOIA’s purpose and endorse a consultant corol-
lary. Julian, 486 U.S. 1, 18 n.1 (Scalia, J., dissenting).
In my view, the principles that Justice Scalia spent a
lifetime advocating—textualism, separation of pow-
ers, deference to the political branches11—are more
important than any one of his individual decisions, let
alone dicta buried in a footnote of a dissent he au-
thored more than 30 years ago. That all judges, to var-
ying degrees, adhere to the plain meaning of statutory
text is Justice Scalia’s lasting legacy. It is more faith-
ful to that legacy to maintain that the plain meaning
of the text must prevail here.

III.

I concur with the majority that the FAA was not

required to search APTMetrics’ records for responsive
documents. But, as Judge Ikuta explains in her well-
reasoned dissent, the majority was also incorrect that
FAA’s search was inadequate. Most fundamentally,
however, because a perceived legislative purpose
doesn’t eclipse the natural meaning of statutory text,
I respectfully dissent from the judgment of the court.

11 See, e.g., Neil M. Gorsuch, Of Lions and Bears, Judges

and Legislators, and the Legacy of Justice Scalia, 66 Case W.
Res. L. Rev. 905, 912 (2016).
 70a
APPENDIX B

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

JORGE ALEJANDRO ROJAS, No. 17-55036

Plaintiff-Appellant,

D.C. No.
v. 2:15-cv-05811-CBM-SS

FEDERAL AVIATION ORDER AND

ADMINISTRATION, AMENDED OPINION
Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California
Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted June 6, 2018

Pasadena, California

Filed April 24, 2019

Amended June 18, 2019

Before: Kim McLane Wardlaw and Morgan Christen,

Circuit Judges, and Donald W. Molloy,* District
Judge.

Order;
Opinion by Judge Molloy;

*The Honorable Donald W. Molloy, United States District Judge

for the District of Montana, sitting by designation.
 71a
Partial Concurrence and Partial Dissent by Judge
Christen

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 perfor-
mance on a screening test called the Biographical As-
sessment.

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 re-
jected 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 con-
sultant as “intra-agency” memorandums.

**This summary constitutes no part of the opinion of the court.

It has been prepared by court staff for the convenience of the
reader.
 72a
The panel rejected plaintiff’s argument that the
FAA had an obligation under FOIA to retrieve any re-
sponsive 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 rejec-
tion 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.

COUNSEL

Michael William Pearson (argued), Curry Pearson &

Wooten PLC, Phoenix, Arizona, for Plaintiff-Appel-
lant.

Alarice M. Medrano (argued), Assistant United States

Attorney; Dorothy A. Schouten, Chief, Civil Division;
United States Attorney’s Office, Los Angeles, Califor-
nia; for Defendant-Appellee.

ORDER

The opinion filed on April 24, 2019, and reported

at 922 F.3d 907 (9th Cir. 2019), is amended at foot-
note 1. The amended opinion is filed simultaneously
with this Order, along with the unchanged dissent.
The parties may file petitions for rehearing and peti-
tions for rehearing en banc in response to the
 73a
amended opinion, as allowed by the Federal Rules of
Appellate Procedure.

OPINION

MOLLOY, District Judge:

Jorge Alejandro Rojas (“Rojas”) appeals the dis-

trict court’s order granting summary judgment in fa-
vor 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 perfor-
mance on a screening test called the Biographical As-
sessment (“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 doc-
trine. 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 Psy-

chological 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 re-

place the FAA’s existing Air Traffic Selection and
 74a
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 ap-
plicants. 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 Oper-
ating 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 Coun-
sel with an initial summary in December 2014 and a
supplement in January 2015.

1 Rojas requests judicial notice of a transcript of a congressional

hearing from June 15, 2016. In general, we may take judicial
notice of publicly available congressional records, including tran-
scripts of congressional hearings. See Fed. R. Evid. 201(b)(2); Lee
v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001) (providing that
judicial notice may be taken of public records). But judicial notice
is not appropriate here because the testimony at issue is “not
relevant to the resolution of this appeal.” Santa Monica Food Not
Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir.
2006).
 75a
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 in-
eligible 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 vali-
dated 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 in-
cludes 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 re-
manded Rojas’s case to the Office of the Chief Counsel
because the agency incorrectly searched for docu-
ments on the empirical validation of the 2014 BA, in-
stead 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
 76a
Control Specialist hiring process, dated December 2,
2014; (2) a summary of the 2015 BA, dated Janu-
ary 29, 2015; and (3) a summary of the validation pro-
cess 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 Vaughn Index.2 The
FAA denied Rojas’s FOIA request for the second time
on December 10, 2015, once again invoking Exemp-
tion 5 and the attorney work-product doctrine.

On July 31, 2015, Rojas filed a complaint in dis-

trict court, alleging that the FAA withheld infor-
mation 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 fa-
vor 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 dis-
pute of material fact that the FAA adequately
searched for relevant documents. Rojas timely ap-
peals. See Fed. R. App. P. 4(a).

2 Agencies are typically required to submit a Vaughn Index in

FOIA litigation. See Vaughn v. Rosen, 484 F.2d 820, 823-25 (D.C.
Cir. 1973), cert. denied, 415 U.S. 977 (1974). A Vaughn Index
identifies the documents withheld, the FOIA exemptions
claimed by the agency, and “why each document falls within the
claimed exemption.” Yonemoto v. Dep’t of Veterans Affairs, 686
F.3d 681, 688 (9th Cir. 2012), overruled on other grounds by An-
imal Legal Def. Fund v. Food & Drug Admin., 836 F.3d 987 (9th
Cir. 2016) (en banc) (per curiam) (citation and internal quotation
marks omitted).
 77a
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 mo-
vant 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 facili-
tate 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 exemp-
tions. 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 re-
quest; (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.
 78a
A. Search for Responsive Documents3

Under FOIA, an agency responding to a request

must “demonstrate that it has conducted a search rea-
sonably calculated to uncover all relevant docu-
ments.” 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 re-
sponsive 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 omit-
ted). “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 rea-
sonably calculated to uncover all relevant documents.

Rojas’s FOIA request sought “information regard-

ing the empirical validation” of the BA that was

3 The FAA argues that the parties stipulated before the district
court that “the only issue in the case concerned the legal basis
for the FAA’s decision to withhold the responsive records.” While
the parties “indicated their agreement that the only issue in the
case concerned the legal basis for the FAA’s decision to withhold
the responsive records,” Rojas argued before the district court
that the FAA conducted an inadequate search, the district court
held that Rojas failed to “show a genuine issue of material fact
regarding whether the search conducted by the FAA was ade-
quate under FOIA,” and both parties briefed the issue on appeal
and argued reasonableness at oral argument. Therefore, the rea-
sonableness of the FAA’s search is properly before the Court.
 79a
described in his rejection notice, including “any report
created by, given to, or regarding APTMetrics’ evalu-
ation 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 re-
sults of the 2015 BA. All of these records were created
by APTMetrics.

“[T]he government may demonstrate that it un-

dertook 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 “rela-
tively 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 ex-
pected 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 de-

scribe the agency’s search procedures. The declara-
tion 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 ex-
plains 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 hir-
ing process “were asked to review their records.” At-
torneys located “[t]hree responsive documents”
 80a
comprised of nine pages in total that “discuss[] the
validation of the 2015 BA.”

Armstead’s declaration is conclusory. It omits rel-

evant 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 ad-
equate where its declaration stated that the agency
spent over 140 hours reviewing documents in re-
sponse to the plaintiff’s FOIA request). The docu-
ments 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, “infor-
mation regarding the empirical validation of the bio-
graphical assessment noted in Rojas’s rejection notifi-
cation.” Construing the facts in the light most favora-
ble to Rojas, the FAA has not shown “that it under-
took an adequate search,” Lane, 523 F.3d at 1139.

B. FOIA Exemption 5

Per Exemption 5, FOIA’s disclosure requirements

do not apply to “inter-agency or intra-agency memo-
randums or letters that would not be available by law
to a party other than an agency in litigation with the
 81a
agency.” 5 U.S.C. § 552(b)(5). The exemption allows
the government to withhold records that are “nor-
mally privileged in the civil discovery context[,]” such
as documents covered by the attorney work-product
privilege. Nat’l Labor Relations Bd. v. Sears, Roebuck
& Co., 421 U.S. 132, 149 (1975); see Maricopa Audu-
bon Soc’y v. U.S. Forest Serv., 108 F.3d 1089, 1092
(9th Cir. 1997). It prevents FOIA from being used to
circumvent litigation privileges. United States v. We-
ber Aircraft Corp., 465 U.S. 792, 801-02 (1984).

The threshold question under Exemption 5 is

whether the records qualify as “inter-agency or intra-
agency memorandums or letters.” 5 U.S.C.
§ 552(b)(5); Dep’t of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 12 (2001). By its plain
terms, Exemption 5 applies only to records that the
government creates and retains. However, a number
of our sister circuits have adopted a functional inter-
pretation of Exemption 5 that treats documents pro-
duced by an agency’s third-party consultant as “intra-
agency” memorandums. This functional interpreta-
tion, called the consultant corollary, recognizes that a
third-party consultant may perform certain functions
on behalf of a government agency. The consultant cor-
ollary treats communications from third-party con-
sultants as “intra-agency” memorandums under Ex-
emption 5, as if those communications came from the
agency itself.

The district court seems to have relied on the con-

sultant corollary in determining that the FAA
properly invoked Exemption 5 in this case. It rea-
soned that “courts have upheld the application of
FOIA Exemption 5 to materials composed and
 82a
supplied by outside contractors.” At the same time,
the court concluded that the records “constitute inter-
agency memoranda created by a government agency.”
The description of the documents as “inter-agency
memoranda” is incorrect. APTMetrics is not a govern-
ment agency. See 5 U.S.C. §§ 551(1) (defining agency),
552(f) (same). Therefore, the exchange of records be-
tween it and the FAA cannot be an inter-agency ex-
change. See Black’s Law Dictionary (10th Ed. 2014)
(defining the preposition “inter” as “among”). Under
the consultant corollary, to which the district court’s
reasoning alludes, the documents would be classified
as “intra-agency.”

We have yet to adopt the consultant corollary in

this Circuit, though we have previously acknowledged
it.4 Here, the role of APTMetrics as a consultant to the
FAA is undisputed. Therefore, we must now decide
whether to adopt the consultant corollary to Exemp-
tion 5. Because the consultant corollary is contrary to

4 In an unpublished memorandum disposition, Center for Biolog-

ical Diversity v. Office of U.S. Trade Representative, 450 F. App’x
605, 607 (9th Cir. 2011) (mem. disp.), agency communications
with private third parties had been withheld under Exemp-
tion 5. After expressing that “[t]his fact alone suggests [the com-
munications] do not meet Exemption 5’s threshold require-
ment[,]” we nonetheless described that certain third-party com-
munications may fall within Exemption 5 under the consultant
corollary. Id. at 608. The case was then remanded to develop the
record on the relationships between the agency and the third
parties. Id. at 609. Because the record was unclear as to whether
the third parties were “consultants,” the case did not require us
to decide the validity of the consultant corollary in this Circuit.
 83a
Exemption 5’s text and FOIA’s purpose to require
broad disclosure, we decline to do so.

The consultant corollary contravenes Exemp-

tion 5’s plain language. Statutory interpretation “be-
gins with the plain language of the statute.” Eleri v.
Sessions, 852 F.3d 879, 882 (9th Cir. 2017) (citation
and internal quotation marks omitted). “When an ex-
amination of the plain language of the statute, its
structure, and purpose clearly reveals congressional
intent, our judicial inquiry is complete.” Id. (citation
and internal quotation marks omitted). Exemption 5
protects only “inter-agency or intra-agency memoran-
dums or letters.” 5 U.S.C. § 552(b)(5) (emphasis
added). An “agency,” with some exceptions not rele-
vant here, is defined as “each authority of the Govern-
ment of the United States, whether or not it is within
or subject to review by another agency.” 5 U.S.C.
§ 551(1). More specifically, an agency “includes any
executive department, military department, Govern-
ment corporation, Government controlled corpora-
tion, or other establishment in the executive branch
of the Government (including the Executive Office of
the President), or any independent regulatory
agency.” 5 U.S.C. § 552(f). A third-party consultant,
then, is not an agency as that word is used in FOIA,
generally, or Exemption 5, particularly. Indeed, “nei-
ther the terms of the exemption nor the statutory def-
initions say anything about communications with out-
siders.” Klamath, 532 U.S. at 9.

In contrast, two other FOIA exemptions explicitly

protect communications with outsiders. Exemption 4
applies to “trade secrets and commercial or financial
information obtained from a person and privileged or
 84a
confidential.” 5 U.S.C. § 552(b)(4) (emphasis added).
Exemption 8 applies to information “contained in or
related to examination, operating, or condition re-
ports prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision of
financial institutions.” 5 U.S.C. § 552(b)(8) (emphasis
added). That these exemptions contemplate infor-
mation from third parties, while Exemption 5 is lim-
ited to “inter-agency or intra-agency” communica-
tions, makes clear that Exemption 5 applies only to
records that originate and remain inside the govern-
ment. See Weber, 465 U.S. at 804 (“We therefore
simply interpret Exemption 5 to mean what it says.”).
Thus, the consultant corollary expands Exemption 5’s
protections beyond the plain text of FOIA.

The dissent attempts to resolve the consultant

corollary’s tension with the statutory text by conflat-
ing the term “intra-agency memorandums,” as used in
Exemption 5, with “agency records,” as used else-
where in FOIA. The dissent also construes “intra-
agency” to mean records held within an agency, even
though they may have originated with a third-party
consultant. But that renders superfluous the term
“inter-agency” as used alongside “intra-agency” in Ex-
emption 5. And, if Congress intended Exemption 5 to
extend to all “agency records,” it would have used that
term, see 5 U.S.C. § 552(f)(1), (2), rather than the nar-
rower “inter-agency or intra-agency memorandums or
letters,” § 552(b)(5).

In addition to contravening the statutory text, the

consultant corollary also undermines the purpose of
FOIA. The dissent insists that civil discovery rules
dictate the scope of Exemption 5. But FOIA “sets forth
 85a
a policy of broad disclosure of Government documents
in order ‘to ensure an informed citizenry, vital to the
functioning of a democratic society.’” FBI v. Abram-
son, 456 U.S. 615, 621 (1982) (quoting Nat’l Labor Re-
lations Bd. v. Robbins Tire & Rubber Co., 437 U.S.
214, 242 (1978)). “[D]isclosure, not secrecy, is the
dominant objective of the Act.” Dep’t of Air Force v.
Rose, 425 U.S. 352, 361 (1976). Accordingly, the ex-
emptions are construed narrowly. See id. at 361; Dep’t
of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989);
Abramson, 456 U.S. at 630. Congress has instructed
as much with the statutory language that the exemp-
tions do “not authorize withholding of information or
limit the availability of records to the public, except as
specifically stated in this section.” 5 U.S.C. § 552(d)
(emphasis added). The consultant corollary allows the
government to withhold more documents than con-
templated by Exemption 5, contrary to FOIA’s policy
favoring disclosure and its mandate to interpret ex-
emptions narrowly.

The cases adopting the consultant corollary do lit-

tle to confront its inconsistency with both the text and
purpose of FOIA. The opinion in which it originates,
the 1971 D.C. Circuit case Soucie v. David, 448 F.2d
1067 (D.C. Cir. 1971), does not even address the stat-
utory text. Soucie concerned a FOIA request for the
Garwin Report, an “independent assessment” on su-
personic transport aircraft produced by a panel of out-
side experts for the Office of Science and Technology.
Id. at 1070. The issue on appeal was whether the Of-
fice of Science and Technology was an “agency” sub-
ject to FOIA’s disclosure requirements. Id. at 1075.
The D.C. Circuit held that the Office of Science and
Technology was an agency and remanded the case for
 86a
the district court to consider whether the Garwin Re-
port fell within any of FOIA’s exemptions. Id. at
1075-76. First, though, the court posited that Exemp-
tion 5 may apply. Id. at 1076-77. In a footnote, the
court summarily reasoned that Exemption 5’s pur-
pose supported applying it to records prepared by
third-party consultants:

The rationale of the exemption for internal

communications indicates that the exemp-
tion should be available in connection with
the Garwin Report even if it was prepared
for an agency by outside experts. The Gov-
ernment may have a special need for the
opinions and recommendations of temporary
consultants, and those individuals should be
able to give their judgments freely without
fear of publicity. A document like the Gar-
win Report should therefore be treated as an
intra-agency memorandum of the agency
which solicited it.

Id. at 1078 n.44. The court cited no authority for these

propositions. Nor did it acknowledge, never mind rec-
oncile, FOIA’s text and purpose.

In Wu v. National Endowment for Humanities,

460 F.2d 1030, 1032 (5th Cir. 1972), the Fifth Circuit
cited Soucie’s unsourced footnote to hold that Exemp-
tion 5 protected evaluations prepared by outside ex-
perts for the National Endowment for the Humani-
ties. Wu reasoned that protecting third-party commu-
nications furthered Exemption 5’s policy of “encour-
aging full and candid intra-agency discussion, and
shielding from disclosure the mental processes of
 87a
executive and administrative officers.” Id. at 1034
(quoting Int’l Paper Co. v. Fed. Power Comm’n, 438
F.2d 1349 (2d Cir. 1971)). But, like Soucie, the opinion
did not reconcile its holding with FOIA’s broader pol-
icy favoring disclosure or Exemption 5’s textual lim-
its.

Together, Soucie and Wu form the basis for the

consultant corollary. Later opinions adopting the con-
sultant corollary cite to the two cases. See Hoover v.
Dep’t of the Interior, 611 F.2d 1132, 1138 (5th Cir.
1980); Lead Indus. Ass’n, Inc. v. OSHA, 610 F.2d 70,
83 (2d Cir. 1979); Ryan v. Dep’t of Justice, 617 F.2d
781, 790 (D.C. Cir. 1970); Martin Marietta Aluminum,
Inc. v. Gen. Servs. Admin., 444 F. Supp. 945, 949 (C.D.
Cal. 1977). Or, they cite to cases that in turn cite
Soucie and Wu. See Gov’t Land Bank v. Gen. Servs.
Admin., 671 F.2d 663, 665 (1st Cir. 1982) (citing Hoo-
ver, 611 F.2d at 1137-38). That other courts readily
signed onto the consultant corollary does not compen-
sate for its shaky foundation. And relying on the doc-
trine’s proliferation to adopt it now would be the re-
sult of judicial inertia, rather than reasoned consider-
ation.

The Supreme Court acknowledged, but did not

adopt, the consultant corollary in the 2001 case De-
partment of Interior v. Klamath Water Users Protec-
tive Association. In Klamath, the Court commented
that “[a]lthough neither the terms of the exemption
nor the statutory definitions say anything about com-
munications with outsiders, some Courts of Appeals
have held that in some circumstances a document pre-
pared outside the Government may nevertheless
qualify as an ‘intra-agency’ memorandum under
 88a
Exemption 5.” Id. at 9 (citations omitted). The Court
also quoted the dissent in Department of Justice v.
Julian, 486 U.S. 1 (1988), in which Justice Scalia ac-
cepted the consultant corollary’s purposive reading of
Exemption 5:

It is textually possible and … 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 per-
son acting in a governmentally conferred ca-
pacity 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 pro-
vide advice to the agency.

Klamath, 532 U.S. at 9-10 (quoting Julian, 486 U.S.

at 18 n.1 (Scalia, J., dissenting)). Curiously, the Kla-
math Court did not discuss the propriety of the con-
sultant corollary and neither adopted nor rejected it.

Instead, the Court explained that the term “intra-

agency” in Exemption 5 is not “purely conclusory” and
warned that there is “no textual justification for
draining the first condition of independent vitality.”
Id. at 12 (majority opinion). The Court then narrowly
held that, “at the least[,]” the consultant corollary
does not apply to communications from interested
parties who consult with the government for their
own benefit. Id. at 12, 12 n.4. In a footnote, the Court
admonished two D.C. Circuit opinions, Public Citizen,
Inc. v. Department of Justice, 111 F.3d 168 (D.C. Cir.
 89a
1997) and Ryan v. Department of Justice, 617 F.2d
781 (D.C. Cir. 1980), as “instances of intra-agency
consultants that arguably extend beyond what we
have characterized as the typical examples.” Id. at 12
n.4. However, the Court provided no further guidance
as to the proper scope of Exemption 5. Klamath, then,
appears to instruct that courts should be more rigor-
ous in analyzing whether an outside party’s records
satisfy Exemption 5’s threshold “intra-agency” re-
quirement before analyzing whether the records are
privileged. See Hunton & Williams v. Dep’t of Justice,
590 F.3d 272, 283-84 (4th Cir. 2010) (describing that
Klamath requires the first step of Exemption 5 to be
“more carefully scrutinized”).

Since the Supreme Court’s decision in Klamath,

the Fourth and Tenth Circuits have adopted the con-
sultant corollary. See Hanson v. USAID, 372 F.3d 286
(4th Cir. 2004); Stewart v. Dep’t of Interior, 554 F.3d
1236, 1245 (10th Cir. 2009). Most recently, though,
the Sixth Circuit rejected it in Lucaj v. Federal Bu-
reau of Investigation, 852 F.3d 541 (6th Cir. 2017).

Lucaj concerned a FOIA request for documents

that the FBI had sent to foreign governments to se-
cure their assistance in investigating Lucaj’s role in
political attacks in Montenegro. Id. at 543-44. The
FBI argued that the documents were protected from
disclosure under Exemption 5 pursuant to the “com-
mon interest doctrine,” which “permits parties whose
legal interests coincide to share privileged materials
with one another in order to more effectively prose-
cute or defend their claims.” Id. at 545 (quoting
Hunton & Williams, 590 F.3d at 277-78). The Sixth
Circuit, relying on Klamath’s instruction that “the
 90a
first condition of Exemption 5 is no less important
than the second,” applied a strict statutory interpre-
tation to conclude that documents sent by a govern-
ment agency to a foreign government are neither “in-
tra-” nor “inter-agency” memoranda within the mean-
ing of the Exemption. Id. at 547 (quoting Klamath,
532 U.S. at 9). The court then explicitly rejected the
consultant corollary as contrary to Exemption 5’s
plain text and the mandate to construe FOIA’s exemp-
tions narrowly. Id. at 549. In doing so, the court relied
on Klamath’s instruction not to ignore Exemption 5’s
threshold inquiry.

Lucaj reads Klamath’s focus on the threshold

question under Exemption 5 as essentially foreclosing
the consultant corollary. We disagree that Klamath
can be interpreted so conclusively. Rather, we under-
stand Klamath as leaving open whether the consult-
ant corollary is a proper application of Exemption 5.
We conclude that it is not. As described above, the
consultant corollary is contrary to Exemption 5’s text
and FOIA’s policy of broad disclosure, and its legal
foundation—the unsourced footnote in Soucie—is ten-
uous at best. While the dissent is critical of the Sixth
Circuit decision, Lucaj provides a reasoned discussion
of the interplay between the consultant corollary, the
language of Exemption 5, and the purpose of FOIA.
That is more than can be said of Soucie and its prog-
eny.

Proponents of the consultant corollary may argue

that rejecting it allows parties to use FOIA to circum-
vent civil litigation privileges. Indeed, Congress en-
acted the exemptions because it “realized that legiti-
mate governmental and private interests could be
 91a
harmed by release of certain types of information.”
Abramson, 456 U.S. at 621. Even so, full disclosure is
the guiding principal in interpreting FOIA. See Rose,
425 U.S. at 361. We are not convinced that the poten-
tial harm to the government warrants adopting the
consultant corollary’s broad reading of Exemption 5.
While today’s holding means some privileged docu-
ments from third-party consultants will be subject to
disclosure under FOIA, the dissent’s suggestion that
it will open the floodgates is speculative. And, absent
the consultant corollary, agencies can still avoid dis-
closure under Exemption 5 by keeping potentially
privileged material within the government. If this
proves unworkable, as the dissent argues, the proper
remedy lies with Congress, not the courts.

Because we reject the consultant corollary, the

records at issue can no longer be considered “intra-
agency” documents, and Exemption 5 does not apply.
Thus, we need not address whether the records would
be privileged under Exemption 5’s second step.

C. Scope of the FOIA Request

Rojas challenges the district court and the FAA’s

interpretation of the scope of his FOIA request. Spe-
cifically, Rojas argues that the FAA has an obligation
under FOIA to retrieve any responsive documents,
such as the underlying data to the summaries, held
by APTMetrics. However, FOIA places no such obli-
gation on an agency.

FOIA empowers federal courts “to enjoin the

agency from withholding agency records and to order
the production of any agency records improperly
 92a
withheld from the complainant.” 5 U.S.C.
§ 552(a)(4)(B). As discussed above, an agency is “any
executive department, military department, Govern-
ment corporation, Government controlled corpora-
tion, or other establishment in the executive branch
of the Government (including the Executive Office of
the President), or any independent regulatory
agency.” 5 U.S.C. § 552(f)(1). A “record” is “any infor-
mation that would be an agency record subject to the
requirements of this section when maintained by an
agency in any format, including an electronic format”
along with “any information … that is maintained for
an agency by an entity under Government contract,
for the purposes of records management.” 5 U.S.C.
§ 552(f)(2). FOIA does not define “agency record.” See
Forsham v. Harris, 445 U.S. 169, 178 (1980).

The Supreme Court has held that for a document

to be an “agency record” under FOIA, the agency must
(1) “‘either create or obtain’ the requested materials,”
and (2) “the agency must be in control of the requested
materials at the time the FOIA request is made.” Tax
Analysts, 492 U.S. at 144-45 (quoting Forsham, 445
U.S. at 182). That an agency has a right to obtain a
document does not render the document an agency
record. Id. at 144. “FOIA applies to records which
have been in fact obtained, and not to records which
merely could have been obtained.” Id. (emphasis in
original) (quoting Forsham, 445 U.S. at 186).

To be sure, the bright line definition of agency rec-

ords as those “which have been in fact obtained” al-
lows the government to avoid disclosure by parking
documents with third parties. We share the concerns
Justice Brennan articulated when he dissented from
 93a
the adoption of a bright line definition. Specifically,
Justice Brennan expressed that

the understandable tendency of agencies to

rely on nongovernmental grantees to per-
form myriad projects distances the elec-
torate from important information by one
more step. If the records of such organiza-
tions, when drawn directly into the regula-
tory process, are immune from public inspec-
tion, then government by secrecy must
surely return.

Forsham, 445 U.S. at 191 (Brennan, J., dissenting).

These concerns are particularly pertinent in this case,
which involves a federal agency delegating its duty to
establish hiring criteria to an outside consultant. But
we are bound by the Supreme Court’s precedent. And
under that precedent, the records held by APTMetrics
that have not been transmitted to the FAA are beyond
the reach of FOIA. That the FAA is not obligated to
search APTMetrics for responsive documents does not
relieve its duty to conduct a reasonable search of its
own records, as discussed above.

CONCLUSION

The district court erred by entering summary

judgment in favor of the FAA. The FAA has not shown
it conducted a search reasonably calculated to un-
cover all relevant documents in response to Rojas’s
FOIA request, and we join the Sixth Circuit in reject-
ing the consultant corollary to Exemption 5. We RE-
VERSE the judgment of the district court and
 94a
REMAND for further proceedings consistent with
this opinion. Rojas’s motion for judicial notice is DE-
NIED.

CHRISTEN, Circuit Judge, concurring in part and

dissenting in part:

I agree with the majority that Rojas cannot use

the Freedom of Information Act (FOIA) to access ma-
terials that the FAA does not actually possess, and I
agree that the scope of the FAA’s in-house search for
responsive documents was inadequate.

I disagree with the majority’s rejection of the “con-

sultant corollary”—a doctrine adopted by seven of our
sister circuits. The “consultant corollary” acknowl-
edges that Exemption 5’s protection of privileged doc-
uments extends to materials prepared by an agency’s
retained consultants. This allows agencies to shield
privileged materials from disclosure to the same ex-
tent they would in discovery. By rejecting the consult-
ant corollary, the majority gives the FOIA a truly ca-
pacious scope. After today, the fact that a document
was prepared in anticipation of litigation by a govern-
ment-retained consultant will present no barrier to
anyone who wants to access it by filing a FOIA re-
quest.

Our court has not had an occasion to squarely ad-

dress the consultant corollary in a published opinion.
Now that the question is presented, we should follow
the First, Second, Fourth, Fifth, Eighth, Tenth, and
D.C. Circuits, all of which adopted the consultant cor-
ollary to shield work product generated by the govern-
ment’s outside consultants in anticipation of
 95a
litigation.1 Because the majority’s decision rejects the
corollary, upends basic discovery rules, and disre-
gards the careful balance Congress struck when it en-
acted the FOIA, I respectfully dissent.

***

The circumstances in which the present dispute

arose provide critical context for its resolution. In
2012, the FAA undertook a comprehensive review of
the Air Traffic Control Specialist selection and hiring
process and hired APTMetrics, a human resource con-
sulting firm, to assist in that effort. APTMetrics mod-
ified a biographical assessment tool the FAA used to
test job-related characteristics. In 2014, the FAA im-
plemented a refined process for selecting air traffic
controllers, incorporating APTMetrics’s recommenda-
tions. Following the implementation of the FAA’s new
process, an unsuccessful applicant filed an Equal Em-
ployment Opportunity Commission (EEOC) com-
plaint, seeking to represent a class of unsuccessful air
traffic controller applicants. That putative class is
represented by Mr. Rojas’s counsel. The FAA then re-
vised the biographical assessment for use in 2015, and
APTMetrics worked on those revisions.

1 See Soucie v. David, 448 F.2d 1067, 1078 n.44 (D.C. Cir. 1971);
Gov’t Land Bank v. Gen. Serv. Admin., 671 F.2d 663, 666 (1st
Cir. 1982); Lead Indus. Ass’n Inc. v. OSHA, 610 F.2d 70, 83 (2nd
Cir. 1979); Hanson v. U.S. Agency for Int’l. Dev., 372 F.3d 286,
292-93 (4th Cir. 2004); Hoover v. U.S. Dept. of the Interior, 611
F.2d 1132, 1137 (5th Cir. 1980); Brockway v. Dept. of Air Force,
518 F.2d 1184, 1194 (8th Cir. 1982); Stewart v. U.S. Dep’t of In-
terior, 554 F.3d 1236, 1245 (10th Cir. 2009).
 96a
Meanwhile, in anticipation of the pending EEOC
litigation, the FAA asked the Chief Operating Officer
of APTMetrics to prepare a summary of its validation
work. APTMetrics delivered an initial summary in
December of 2014 and supplemented it the following
month. By August of 2015, a second group of unsuc-
cessful applicants filed a complaint and petition for
class certification, this time challenging the 2015 bio-
graphical assessment. The second putative class is
also represented by Mr. Rojas’s lawyer.

Mr. Rojas applied, but was not hired, to be an air

traffic control specialist in 2015. He later filed a FOIA
request seeking information about the biological as-
sessment’s empirical validation and its “evaluation
and creation and scoring.”2 The FAA conducted a
search and found three documents that APTMetrics
created at the FAA’s request and in anticipation of lit-
igating the EEOC complaints. The FAA withheld the
three documents pursuant to FOIA’s Exemption 5,
which exempts from disclosure “inter-agency or intra-
agency memorandums or letters that would not be
available by law to a party … in litigation with the
agency.” 5 U.S.C. § 552(b)(5). The FAA claimed the
withheld documents were protected attorney-client

2Mr. Rojas’s request sought three categories of information, but

the parties stipulated that the only category at issue in this ap-
peal is the request for information regarding: “[T]he empirical
validation of the biographic assessment noted in the rejection
notification,” including “any report, created by, given to, or re-
garding APTMetrics’s evaluation and creation and scoring of the
assessment.”
 97a
communications and work product, and that they
were pre-decisional and deliberative.

Mr. Rojas filed an administrative appeal and,

eventually, a complaint in district court challenging
the denial of his FOIA request. The district court con-
ducted an in camera review, ruled that the FAA’s
search for records was reasonable, and granted sum-
mary judgment in favor of the government. The court
described the withheld documents as “summaries of
[1] the [air traffic control] hiring process, [2] the 2015
biographic assessment, and [3] the validation process
and results.”

Our review of the district court’s order granting

summary judgment is governed by several well-estab-
lished principles that the majority does not dispute.
First, we know that materials prepared in anticipa-
tion of litigation and at the request of an attorney are
protected work product and need not be produced in
litigation. See, e.g., Hickman v. Taylor, 329 U.S. 495,
510-11 (1947). Second, in the context of civil discov-
ery, we have long recognized that work-product pro-
tection extends to materials created by consultants or
third-party experts. See, e.g., United States v. Nobles,
422 U.S. 225, 238 (1975); see also Fed. R. Civ. P.
26(b)(4) (exempting draft expert reports, communica-
tions with expert witnesses, and consulting experts
materials from discovery). Third, the Supreme Court
has explained that FOIA’s Exemption 5 precludes the
disclosure of information that would be privileged in
litigation. See United States v. Weber Aircraft Corp.,
465 U.S. 792, 799-802 (1984) (explaining that certain
air crash safety investigation materials could be with-
held pursuant to FOIA’s Exemption 5 because courts
 98a
had previously recognized that those materials were
privileged in discovery). These principles alone dic-
tate the appropriate resolution in this case: because
the validation summaries would not be available to
Mr. Rojas in discovery, he cannot acquire them
through a FOIA request.3

The majority concludes that Exemption 5 only

shields materials generated by federal agencies in-
house, not those created by the government’s retained
consultants. Seven other circuits have considered this
argument and rejected it. These circuits all adopted
the “consultant corollary,” agreeing that Exemption 5
reflects Congress’s determination that the govern-
ment is entitled to the same litigation privileges af-
forded to other parties. Indeed, the propriety of the
consultant corollary was foreshadowed by well-recog-
nized precedent defining the scope and proper appli-
cation of litigation privileges and protections. The Su-
preme Court has “consistently rejected” the sugges-
tion that parties in litigation with the government
“can obtain through the FOIA material that is nor-
mally privileged” or use FOIA requests “to supple-
ment civil discovery.” Id. at 801-02 (“We do not think
that Congress could have intended that the weighty
policies underlying discovery privileges could be so
easily circumvented.”). All of these authorities lead to
the conclusion that the FOIA does not require federal

3 The district court said the validation summaries were “inter-

agency memorandums,” but its reasoning (and supporting au-
thority) clearly related to “intra-agency” memoranda. For rea-
sons explained here, the withheld documents plainly qualify for
Exemption 5 protection as “intra-agency” memoranda.
 99a
agencies to produce retained experts’ work product
created in anticipation of litigation.

I.

Congress enacted the Freedom of Information Act

in 1966 as a means of increasing transparency and
broadening access to government materials. “FOIA
‘sets forth a policy of broad disclosure of Government
documents in order to ensure an informed citi-
zenry[.]’” Ante at 15 (quoting FBI v. Abramson, 456
U.S. 615, 621 (1982)). But long before Congress
passed the FOIA, courts and legislatures recognized
that parties to litigation are entitled to shield certain
materials from discovery and disclosure. For example,
there is no question that litigants need not produce
materials covered by the attorney-client privilege or
documents that constitute attorney work-product, in-
cluding those prepared by the party’s agents and con-
sultants. See, e.g., Hickman, 329 U.S. at 510-11 (work
product materials are protected); Cont’l Oil Co. v.
United States, 330 F.2d 347, 350 (9th Cir. 1964) (at-
torney-client privilege is protected); Nobles, 422 U.S.
at 238 (work product encompasses material prepared
by attorney’s investigators and other agents in antic-
ipation of litigation); see also Fed. R. Civ. P. 26(b)(4)
advisory committee’s note to the 1970 amendment.

Congress was well aware of discovery privileges

when it drafted the Freedom of Information Act, and
it recognized that certain exceptions to FOIA’s disclo-
sure regime were necessary in order for the govern-
ment’s many agencies to operate effectively. See S.
Rep. No. 89-813, at 9 (1965) (acknowledging that gov-
ernment efficiency “would be greatly hampered” if
 100a
agencies were “forced to ‘operate in a fishbowl.’”).
FOIA’s exemptions reflect careful balancing between
the benefits of transparency and the government’s
need to maintain the confidentiality of some types of
records. For example, FOIA exemptions allow federal
agencies to withhold classified materials (Exemp-
tion 1), trade secrets (Exemption 4), and internal per-
sonnel and medical files (Exemption 6). See generally
5 U.S.C. § 552(b)(1)-(9).

Exemption 5 has been described as the most im-

portant of FOIA’s exemptions.4 It specifically pre-
cludes the disclosure of inter-or intra-agency materi-
als “that would not be available by law” to adverse
parties in litigation. 5 U.S.C. § 552(b)(5); see Weber,
465 U.S. at 801. Rojas does not dispute that Exemp-
tion 5 shields attorney work-product created by gov-
ernment agency staff, and this concession is not sur-
prising. There was nothing novel about Exemption 5’s
carve out; without it, the FOIA would have obliterated
a common law rule dating back decades. F.T.C. v. Gro-
lier Inc., 462 U.S. 19, 20 (1983) (“It is well established
that this exemption was intended to encompass the
attorney work-product rule.”).

Given this backdrop, the resolution of Rojas’s ap-

peal should be straightforward: he is not entitled to
the APTMetrics documents because the FAA’s con-
sultant prepared them at the FAA’s request, and in
anticipation of litigation. This result would be the

4See 33 Fed. Prac. & Proc. Judicial Review § 8441 (1st ed.) (“The
Freedom of Information Act provides nine exemptions from the
disclosure requirements … These are, in order of importance, 5,
7, 1, 3, and 2.”).
 101a
same whether the materials were prepared by an FAA
employee sitting in an FAA cubicle, or by a consultant
hired to do the same thing. We need look no further
than Exemption 5 to know that the FAA was not re-
quired to disclose the three withheld documents. See
5 U.S.C. § 552(b)(5).

II.

The majority reviews the text of Exemption 5, de-

cides that consultants do not qualify as “agencies,”
and concludes that FAA’s consultant-prepared mate-
rials are not “intra-agency memorandums” within the
scope of Exemption 5. See Ante at 13-14.

I read the statute differently. Exemption 5 states

that FOIA’s disclosure requirement “does not apply”
to “inter-agency or intra-agency memorandums or let-
ters that would not be available by law to a party
other than an agency in litigation with the agency[.]”
5 U.S.C. § 552(b)(5). The Supreme Court has ex-
plained that the phrases “an agency” and “the agency”
in Exemption 5 refer to the same entity. See Weber,
465 U.S. at 798 (explaining that a plaintiff could not
access privileged documents through a FOIA request
because “they would not be available by law to a party
other than [the Air Force] in litigation with [the Air
Force].”) (alternation in original) (internal quotation
marks omitted).

Nothing in Exemption 5’s text requires that the

materials be created by the agency itself, nor do the
statute’s definitions dictate that an “intra-agency
memorandum” includes only those materials that
agency employees (as opposed to retained
 102a
consultants) prepare in-house. Here, the FAA specifi-
cally engaged APTMetrics to use its expertise to cre-
ate biometric summaries on behalf of the FAA. The
FAA took possession, reviewed and relied on the sum-
maries, then stored and maintained them. For all in-
tents and purposes, the three withheld documents are
the FAA’s memoranda and we should treat them just
as we would treat a memorandum created by an in-
ternal FAA employee.

An agent acts “on the principal’s behalf,” meaning

the agent’s acts are the principal’s acts. See Agency,
Black’s Law Dictionary (10th ed. 2014). The nature of
an agent-principal relationship requires that the
“agent’s actions have legal consequences for the prin-
cipal[,]” id., and we have recognized that consultants
are agents whose statements can bind their paying
clients. See Reid Bros. Logging Co. v. Ketchikan Pulp
Co., 699 F.2d 1292, 1306 (9th Cir. 1983) (finding that
a consultant’s report, distributed to a party in litiga-
tion, was properly introduced as a party admission
under Fed. R. Evid. 801(d)(2)(C)). Because the FAA
retained APTMetrics as a consultant and paid it to
prepare the sought-after biometric assessment sum-
maries in anticipation of class action litigation, those
summaries should be treated as if FAA employees
prepared them. Unless we ignore the entirety of the
statute, its legislative history, analogous case law,
and controlling case law addressing the limits of per-
missible discovery, the documents must be afforded
Exemption 5 protection.

The actual text of Exemption 5 easily encom-

passes the requested materials because Exemption 5
protects “intra-agency memorandums[.]” Of course,
 103a
“intra” simply means “within,” see intra, The Ameri-
can Heritage Dictionary of the English Language
(1978), and we know that the FAA paid APTMetrics
to prepare the summaries on its behalf. The agency
received the summaries, and as far as we can tell it
has been maintaining and storing them ever since.
The responsive documents are therefore “within” the
FAA in both a physical and proprietary sense, so the
FAA’s consultant-created memoranda are “intra-
agency memorandums,” strictly and textually speak-
ing.

FOIA’s broader statutory framework also indi-

cates that the FAA’s consultant-prepared materials
are entitled to Exemption 5’s protection. The FOIA
defines “record” and explains that the materials that
would qualify as “an agency record” include infor-
mation “maintained by an agency in any format[.]” 5
U.S.C. § 552(f)(2). This is consistent with the Su-
preme Court’s opinion in Forsham v. Harris, where
the Court defined FOIA’s “agency records” (through
reference to similar statutes) as materials “made or
received by an agency[,]” and “created or received” by
the government. 445 U.S. 169, 182-86 (1980) (empha-
sis in original). Forsham further explained that “[t]he
legislative history of the FOIA abounds with other ref-
erences to records acquired by an agency.” Id. at 184
(emphasis added). There is no dispute that the FAA
received APTMetrics’s summaries and that it remains
in possession of them. As such, those summaries nec-
essarily constitute “agency records” pursuant to
FOIA’s definitions.

Today’s opinion divorces “agency records” from

“intra-agency memorandums,” and reaches the
 104a
paradoxical conclusion that the three withheld docu-
ments are not “intra-agency memorandums” even
though they certainly fall within the definition of
“agency records.” It is difficult to conjure an adequate
rationale or a holistic reading of the statutory text by
which all “agency records” fall within FOIA’s scope
but only an arbitrary subset of privileged “agency rec-
ords” are protected by Exemption 5.

In the majority’s view, the consultant corollary ig-

nores FOIA’s distinction between intra-and inter-
agency materials. Ante at 14. But distinguishing be-
tween those two categories is simple if the consultant
corollary is properly applied: Exemption 5 encom-
passes materials prepared in-house or by an agency’s
consultant, and the materials are either “intra-” or
“inter-agency” depending on whether they are shared
outside the agency.

Parties engaged in litigation with the government

will use today’s ruling to circumvent the government’s
claims of work product, attorney-client communica-
tion or any other privilege recognized by our discovery
rules, even though the federal rules expressly bar dis-
covery into those kinds of materials, see Fed. R. Civ.
P. 26(b)(4)(D), and despite the long-established rule
that the government is entitled to the same litigation
privileges as other parties. In re Lindsey, 158 F.3d
1263, 1269 (D.C. Cir. 1998) (“Congress intended that
agencies should not lose the protection traditionally
afforded through the evidentiary privileges simply
 105a
because of the passage of the FOIA.”)5; NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 154 (1975) (“It is
equally clear that Congress had the attorney’s work-
product privilege specifically in mind when it adopted
Exemption 5 and that such a privilege had been rec-
ognized in the civil discovery context by the prior case
law.”).

Today’s decision only disadvantages the govern-

ment; the privileges afforded to non-government par-
ties will remain intact because only the government
responds to FOIA requests. Thus, the decision simul-
taneously puts the government at a stark litigation
disadvantage, departs from the Supreme Court’s ob-
servation that “Exemption 5 simply incorporates civil
discovery privileges[,]” including those “well recog-
nized in the case law[,]” Weber, 465 U.S. at 799, and
disregards a clear congressional directive that the
government should receive the same discovery privi-
leges as other parties.

Notwithstanding these concerns, the majority re-

jects the corollary because it is “not convinced that the
potential harm to the government warrants adopting
the consultant corollary’s broad reading of Exemp-
tion 5.” Ante at 20-21. Respectfully, this is insufficient
in light of the decades-long track record of courts uni-
formly upholding the government’s discovery privi-
leges, which Congress expressly preserved by adopt-
ing Exemption 5. See Weber, 465 U.S. at 801 (“We do
not think that Congress could have so easily intended

5Quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d

854, 862 (D.C. Cir. 1980).
 106a
that the weighty policies underlying discovery privi-
leges could be [] easily circumvented [through a FOIA
request]”).6

The majority suggests that “absent the consultant

corollary, agencies can still avoid disclosure under Ex-
emption 5 by keeping potentially privileged material
within the government.” Ante at 21. But that sugges-
tion has it backwards. The government is keeping
APTMetrics’s work product, which is why the materi-
als fall within the scope of the search for responsive
documents. If the documents were only possessed by
APTMetrics, they would not be subject to the FOIA at
all. Forsham, 445 U.S. at 186. If the majority means
that agencies can avoid disclosure by creating materi-
als in-house, that theory fails to acknowledge that
dozens of federal agencies must rely on the expertise
of outside consultants to perform specialized tasks.
Regrettably, today’s opinion will likely dissuade agen-
cies from seeking helpful expertise from outside con-
sultants in the first place.

III.

There is nothing new or novel about the consult-

ant corollary, as evidenced by the dearth of case law
supporting today’s decision. Circuit courts have been
applying the consultant corollary since at least 1971.

6 Curiously, the majority quotes Weber to justify its approach.

Ante at 14. But Weber is hardly supportive of the majority’s anal-
ysis. Indeed, contrary to the majority’s holding here, Weber ex-
plained that the plain language of Exemption 5 incorporated dis-
covery privileges and allowed agencies to shield privileged ma-
terials. 465 U.S. at 799-801.
 107a
Just five years after Congress enacted the FOIA, the
D.C. Circuit adopted the consultant corollary in
Soucie v. David, 448 F.2d 1067, 1078 n.44 (D.C. Cir.
1971) (explaining that an outside expert’s report
should “be treated as an intra-agency memorandum
of the agency which solicited it” for purposes of Ex-
emption 5). Since that decision, the First, Second,
Fourth, Fifth, Eighth, and Tenth Circuits have
adopted the consultant corollary. See Gov’t Land
Bank v. Gen. Serv. Admin., 671 F.2d 663, 666 (1st Cir.
1982) (exempting from FOIA disclosure a property ap-
praisal performed by independent contractor); Lead
Indus. Ass’n Inc. v. OSHA, 610 F.2d 70, 83 (2nd Cir.
1979) (exempting from FOIA disclosure private con-
sultant’s analysis of lead levels provided to agency);
Hanson v. U.S. Agency for Int’l. Dev., 372 F.3d 286,
292-93 (4th Cir. 2004) (exempting from FOIA disclo-
sure a document prepared by outside attorney as at-
torney work product); Hoover v. U.S. Dept. of the Inte-
rior, 611 F.2d 1132, 1137 (5th Cir. 1980) (holding that
an appraisal report by an outside expert constituted
an intra-agency document for purposes of Exemp-
tion 5); Brockway v. Dept. of Air Force, 518 F.2d 1184,
1194 (8th Cir. 1982) (exempting from FOIA disclosure
statements provided to agency by outside witnesses
due to pre-trial privilege); Stewart v. U.S. Dep’t of In-
terior, 554 F.3d 1236, 1245 (10th Cir. 2009) (holding
that consultant’s materials were properly withheld
pursuant to Exemption 5 because “[f]or purposes of [a
FOIA] analysis” the consultant “functioned akin to an
agency employee”).

The majority criticizes the first consultant corol-

lary case, Soucie v. David, for failing to cite supportive
authority for the consultant corollary, Ante at 16, but
 108a
Soucie was a case of first impression. See Fong v. Im-
migration & Naturalization Serv., 308 F.2d 191, 194
(9th Cir. 1962) (“The case is one of first impression
and neither party has been able to cite cases or deci-
sions in point.”). More importantly, the majority
never rebuts the reasoning seven of our sister circuits
have proffered to justify this corollary to Exemp-
tion 5—i.e., that “[t]he Government may have a spe-
cial need for the opinions and recommendations of
temporary consultants, and those individuals should
be able to give their judgments freely without fear of
publicity.” Soucie, 448 F.2d at 1078 n.44. Nor could it.
In the context of civil discovery, courts have long ac-
cepted that agencies benefit from the assistance of
outside experts and that the unnecessary risk of dis-
closure may put a damper on the government’s ability
to acquire the knowledge and expertise it requires.
See, e.g., CNA Fin. Corp. v. Donovan, 830 F.2d 1132,
1162 (D.C. Cir. 1987) (“[F]ederal agencies occasion-
ally will encounter problems outside their ken, and it
clearly is preferable that they enlist the help of out-
side experts skilled at unravelling their knotty com-
plexities. … To force an exposure is to stifle honest
and frank communication between agency and expert
by inhibiting their free exchange of thought”) (inter-
nal quotation marks omitted); 37A Am. Jur. 2d Free-
dom of Information Act § 182 (2019) (“Agencies have
a special need for the opinions and advice of tempo-
rary consultants, and the quality of consultants’ ad-
vice, like that of agency employees, may suffer if the
advice is made public.”). This case is a good example.
It is doubtful that decision makers at the FAA would
have engaged in a full and candid conversation about
the efficacy of the biometric assessment or ways it
 109a
might be improved if they were aware that their com-
munications would be subject to disclosure in the pro-
spective class action litigation. And there is no ques-
tion the public is best served if the most refined selec-
tion criteria are used to choose applicants best quali-
fied to perform the exquisitely sensitive positions held
by air traffic controllers.7

The only circuit to express doubt about the con-

sultant corollary is the Sixth Circuit. In Lucaj v. Fed-
eral Bureau of Investigation, 852 F.3d 541, 546-47
(6th Cir. 2017), the Sixth Circuit seemed to reject the
rule, except there were no consultants at issue in Lu-
caj. The plaintiff in Lucaj was arrested in Montene-
gro, and the FBI believed that he was connected to
terrorist attacks. Id. at 543. Because Lucaj believed
the United States played a role in his arrest, he sent
a FOIA request to the FBI. Id. at 543-44. The FBI

7 The fact that consultant-prepared materials may constitute

“intra-agency memorandums” for purposes of Exemption 5 does
not mean that agencies are obligated to search for responsive
FOIA materials held only by consultants. As the majority ex-
plains, the Supreme Court’s decision in Forsham v. Harris fore-
closes Rojas’s challenge to the FAA’s failure to search APT-
Metrics’s files in response to his FOIA request. I share the ma-
jority’s concern about the possibility that the FOIA could be cir-
cumvented by storing materials offsite with agency contractors.
But I agree with the majority that we are bound by Forsham,
and it dictates that Rojas cannot access APTMetrics’s offsite doc-
uments through a FOIA request.

I also agree with the majority’s conclusion that the FAA has
failed to show that it undertook an adequate in-house search.
See Ante at 9-11. However, the proper scope of a FOIA search is
distinct from whether materials falling within that scope may be
exempted from disclosure.
 110a
produced some responsive documents, but it withheld
two that the Department of Justice had sent to foreign
law enforcement agencies. Id. at 544-45. The Sixth
Circuit rejected the FBI’s claim that the documents
were exempted from the FOIA and ordered them pro-
duced. In the process of issuing this ruling, the Sixth
Circuit purported to reject the consultant corollary,
id. at 546-47, but because no consultants or consult-
ant-created materials were at issue in Lucaj, its brief
rejection of the consultant corollary can only be re-
garded as dictum. Notably, the majority is conspicu-
ously wary of Lucaj, see Ante at 20 (disagreeing with
Lucaj’s review of applicable Supreme Court prece-
dent), but it subscribes to the same “plain text” inter-
pretation of “intra-agency” that the Sixth Circuit en-
dorsed. By relying on a conclusion that was merely
dictum in Lucaj, today’s opinion creates a circuit split.

The majority also cites Department of Interior v.

Klamath Water Users Protective Association, 532 U.S.
1 (2001), but that case lends no support to its position.
In Klamath, the dispute involved competing claims by
the Klamath Tribe and others to certain water rights.
Id. at 5-6. The federal government solicited the Kla-
math Tribe’s input on a potential global resolution. Id.
Other litigants sought access to the Klamath Tribe’s
memorandum via the FOIA, and on appeal the Court
considered whether the Department of Interior could
rely on Exemption 5 and the consultant corollary to
withhold it. Id. at 6-7. The Court rejected the Depart-
ment’s claim that it could withhold the Tribe’s settle-
ment proposal under Exemption 5—but not because
it rejected the consultant corollary. On the contrary,
the Court acknowledged that in the cases where
courts have applied the consultant corollary, “the
 111a
records submitted by outside consultants played es-
sentially the same part in an agency’s process of de-
liberation as documents prepared by agency person-
nel might have done.” Id. at 10. The Court went on to
recognize that in those circumstances “consultants
may be enough like the agency’s own personnel to jus-
tify calling their communications ‘intra-agency.’” Id.
at 12. Ultimately, the Court rejected the Department
of Interior’s claimed exemption because the Tribe was
decidedly not acting on the government’s behalf. Far
from it, the Tribe was an interested party advocating
for its own interests. Id. at 11-15. Klamath is more a
benediction of the consultant corollary than an indict-
ment—after all, the question whether the corollary is
correct is antecedent to whether it applies in a partic-
ular situation. Indeed, at least one circuit reads Kla-
math as the Court’s tacit affirmance of the consultant
corollary. See Stewart, 554 F.3d at 1244 (“In Klamath,
after recognizing that Exemption 5 extends to govern-
ment agency communications with paid consultants,
the Court declined to analogize tribal communica-
tions to consultant communications.”).

At bottom, though seven circuit courts have ex-

pressly adopted the consultant corollary and the Su-
preme Court’s Klamath decision has responded favor-
ably (albeit implicitly) to the rule, only one other cir-
cuit has rejected the corollary, in dictum. Against that
ledger, the majority marshals a crimped view of the
term “intra-agency” and reaches a conclusion that
casts aside the need to read the FOIA as an integrated
whole, as well as decades of persuasive authority.
 112a
IV.

Today’s opinion creates a lopsided loophole that

prejudices only the federal government. Weber, 465
U.S. at 801. The consultant corollary fits logically
with the text and purpose of the FOIA and ensures
that government agencies can appropriately shield
privileged and sensitive materials from FOIA re-
sponses, just as they would in discovery. I would
adopt the consultant corollary, and respectfully dis-
sent from the majority’s decision.
 113a
APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

)
)
)
JORGE ALEJANDRO ) CASE NO. 2:15-cv-
ROJAS, ) 05811-CBM-SSx
Plaintiff, )
) ORDER RE
v. ) MOTION FOR
) SUMMARY
FEDERAL AVIATION ) JUDGMENT
ADMINISTRATION, )
Defendant. )

The matter before the Court is Defendant Federal

Aviation Administration’s (“FAA’s”) Motion for Sum-
mary Judgment (“Motion”). (Dkt. No. 25.) Having con-
sidered the Motion, Plaintiff’s “Response” (Dkt. No.
26), the FAA’s “Reply in Support” thereof (Dkt. No.
30), and the evidence and oral arguments presented
by both parties (Dkt. No. 31), the Court GRANTS the
FAA’s Motion.

I. PROCEDURAL AND FACTUAL BACK-

GROUND

Plaintiff Jorge A. Rojas filed his complaint under

the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, alleging that the FAA’s Office of the Chief
Counsel violated FOIA when it failed to respond
 114a
adequately to his May 20, 2015 request for infor-
mation. (Dkt. No. 1 (“Compl.”) ¶¶ 1, 7, 8.)

Earlier that year, Plaintiff had applied for em-

ployment with the FAA to serve as an Air Traffic Con-
trol Specialist (“ATCS”). (Compl. ¶ 7, Ex. 1; Dkt.
No. 25-2, Declaration of Yvette A. Armstead, FAA, As-
sistant Chief Counsel, Employment and Labor Law
Division (“Decl. Armstead”) ¶¶ 3-4.) As part of the ap-
plication process, Plaintiff was required to complete a
biographical assessment, which was used by the FAA
in 2015 to evaluate applicants for the ATCS position.
(Decl. Armstead ¶ 7, n.1.)

The biographical assessment was developed for

the FAA in 2013 by Applied Psychological Tech-
niques, Inc. (“APTMetrics”), an outside consultant re-
tained by the FAA to review the agency’s hiring pro-
cesses, and to recommend and implement improve-
ments. (Decl. Armstead ¶¶ 5, 6, 7, 7 n.1, 10; Dkt.
No. 27-1, Pls. Exhs. 1, 15, 16; Dkt. No. 25-1, Declara-
tion of John C. Scott, Chief Operating Officer of APT-
Metrics (“Decl. Scott”) ¶¶ 3, 5, 9.) The first version of
the biographical assessment was used in 2014, and
was revised before the FAA began reviewing and hir-
ing applicants in 2015. (Decl. Armstead ¶ 7, n.1, ¶ 10.)

Plaintiff received notice that, based on his re-

sponses to the biographical assessment, the FAA had
determined that he was not eligible for a 2015 ATCS
position. (See Compl. Ex. 5; Dkt. No. 27-1, Pl.’s
Exhs. 12, 18 at ¶ 21.) Thereafter, Plaintiff filed a
FOIA request with the FAA, requesting various rec-
ords concerning his 2015 application for employment,
including information regarding the reason for his
 115a
having “fail[ed] the biographical assessment,” “emails
and other communications … related to the scoring of
the biographical assessment,” and information re-
garding the “empirical validation of the [2015] bio-
graphical assessment.” (Compl. ¶ 7, Ex. 1.) The FAA
assigned his request to four offices within the FAA:
the Air Traffic Organization, the FOIA Program Man-
agement Branch, the Office of Human Resources, and
the Office of the Chief Counsel. (Id. ¶ 8; see also Dkt.
No. 27-1, Pl.’s Ex. 13.)

Plaintiff complains that the response he received

from the FAA’s Office of the Chief Counsel violates
FOIA. (Id.) Specifically, Plaintiff complains that the
FAA Office of the Chief Counsel failed to respond to
his request for:

Information regarding the empirical valida-

tion of the biographical assessment noted in
[Plaintiff’s] rejection notification. This in-
cludes any report, created by, given to, or re-
garding APTMetrics’ evaluation and crea-
tion and scoring of the assessment.

(Armstead Decl. ¶¶ 3-4, Ex. A; Compl. ¶ 7; see also

Compl. Ex. 1.)

In response to Plaintiff’s request, the FAA Office

of the Chief Counsel conducted a search for relevant
documents, and eventually responded to the request
on December 10, 2015 by issuing a determination let-
ter. (Armstead Decl. ¶¶ 17, 18, 19, 20, Ex. D.) In the
letter, the FAA Office of the Chief Counsel indicated
to Plaintiff that it had conducted a search for “infor-
mation regarding the empirical validation of the
 116a
biographical assessment noted in the rejection notifi-
cation” including “any report, created by, given to, or
regarding APTMetrics’ evaluation and creation and
scoring of the assessment.” (Armstead Decl. Ex. D.)
The FAA stated that, although responsive records had
been identified, they were being withheld pursuant to
FOIA Exemption 5 because they “were created by
APTMetrics[] at the direction of counsel in anticipa-
tion of litigation related to the [ATCS] hiring process.”
(Id.)

The FAA filed the responsive records under seal

for in camera review. (See Dkt. Nos. 34, 35.) The
Court has reviewed the records, and finds them to be
summaries of the ATCS hiring process, the 2015 bio-
graphical assessment, and the validation process and
results. (See Dkt. No. 25-3 at 13-16; Armstead Decl.
¶¶ 10-11, 18-20; Scott Decl. ¶¶ 7-8; Opp. At 12-14.)
The records were created by APTMetrics at the re-
quest of FAA’s counsel. (Id.)

In a stipulation filed March 24, 2016, the parties

asked the Court to vacate the scheduled settlement
conference deadline and instead allow the parties to
proceed to summary judgment. (Dkt. No. 23.) In sup-
port, the parties indicated their agreement that the
only issue in the case concerned the legal basis for the
FAA’s decision to withhold the responsive records.
(Dkt. No. 23 at 2-3; Declaration of Alarice M. Medrano
¶ 9.) The Court approved the parties’ stipulation (Dkt.
No. 24), and the FAA subsequently filed the present
Motion (Dkt. No. 25).
 117a
II. LEGAL STANDARDS

FOIA requires that, unless an exemption applies,

“each agency, upon any request for records which
(i) reasonably describes such records, and (ii) is made
in accordance with published rules … , shall make the
records promptly available to any person.” 5 U.S.C.
§ 552(a)(3)(A). The statute mandates a policy of broad
disclosure, and gives individuals a judicially-enforce-
able right of access to such documents when produc-
tion is properly requested. See 5 U.S.C. § 552(a). In
response to a FOIA request, an agency must conduct
a reasonable, good faith search for responsive records
using methods that can be reasonably expected to pro-
duce those records, to the extent they exist. 5 U.S.C.
§ 552(a)(3)(C); see also Hamdan v. U.S. Dep’t of Jus-
tice, 797 F.3d 759, 770 (9th Cir. 2015). Agencies may
withhold responsive records if they fall within any of
the nine statutory exemptions to FOIA’s disclosure re-
quirement. 5 U.S.C. § 552(b); see also Spurlock v.
F.B.I., 69 F.3d 1010, 1015-16 (9th Cir. 1995).

“Most FOIA cases are resolved by the district

court on summary judgment, with the district court
entering judgment as a matter of law.” Animal Legal
Def. Fund v. F.D.A., No. __ F.3d __, 2016 WL 4578362
(9th Cir. Sept. 2, 2016); see also Fed. R. Civ. P. 56(a)
(summary judgment is appropriate when there is “no
genuine dispute as to any material fact and the mo-
vant is entitled to judgment as a matter of law.”). A
defendant is entitled to summary judgment in a FOIA
case when it demonstrates that no material facts are
in dispute, that it has conducted an adequate search
for responsive records, and that each responsive rec-
ord that it has located has either been produced or is
 118a
exempt from disclosure. Weisberg v. U.S. Dep’t of Jus-
tice, 627 F.2d 365, 368 (D.C. Cir. 1980); see also
Zemansky v. U.S. E.P.A., 767 F.2d 569, 571 (9th Cir.
1985). However, if genuine issues of material fact ex-
ist in a FOIA case, the district court should proceed to
a bench trial or adversary hearing, giving the parties
an opportunity to offer evidence. Animal Legal Def.
Fund, 2016 WL 4578362 at *2.

III. DISCUSSION

A. The FAA’s Search for Relevant Docu-

ments

The adequacy of an agency’s search under FOIA

is reviewed under a standard of reasonableness. Citi-
zens Comm’n on Human Rights v. FDA, 45 F.3d 1325,
1328 (9th Cir. 1995). “The crucial issue is not whether
relevant documents might exist, but whether the
agency’s search was ‘reasonably calculated to discover
the requested documents.’” Church of Scientology Int’l
v. U.S. Dept. of Justice, 30 F.3d 224, 230 (1st Cir.
1994). To satisfy this burden, agencies may rely on
declarations, submitted in good faith, that explain in
reasonable detail the scope and method of the
agency’s search. Hamdan, 797 F.3d at 770; Zemansky,
767 F.2d at 571. Declarations submitted by an agency
to demonstrate the adequacy of its response to FOIA
requests are presumed to be in good faith, and there-
fore cannot be rebutted by purely speculative claims
about the existence and discoverability of additional
documents. Hamdan, 797 F.3d at 770 (citing Ground
Saucer Watch, Inc. v. C.I.A., 692 F.2d 770, 771 (D.C.
Cir. 1981)); Nat. Res. Def. Council v. U.S. Dep’t of Def.,
442 F. Supp. 2d 857, 878 (C.D. Cal. 2006) (citing
 119a
SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926
F.2d 1197, 1200 (D.C. Cir. 1991)).

In support of its Motion on this issue, the FAA of-

fers the declaration of Yvette A. Armstead, Assistant
Chief Counsel of the FAA’s Employment and Labor
Law Division. (Decl. Armstead ¶ 1.) In her role as As-
sistant Chief Counsel, Ms. Armstead provides legal
advice related to the hiring process for ATCS posi-
tions at the FAA. (Id. ¶ 2.) In the declaration, Ms.
Armstead details the steps taken by her division of
the FAA to search for records responsive to Plaintiff’s
FOIA request. (Motion at 8; see also Decl. Armstead
¶ 17.) She declares that the search was “reasonably
calculated to obtain responsive records because the
attorneys who provided legal advice related to the re-
visions to the ATCS hiring process were asked to re-
view their records.” (Decl. Armstead ¶ 17.)

Plaintiff states no objection to the evidence of-

fered by the FAA, nor does he challenge the methods
employed by the FAA to conduct its search. Instead,
Plaintiff contends that “it is questionable whether the
FAA uncovered all the documents regarding the vali-
dation study” of the 2015 biographical assessment be-
cause the FAA previously published studies regarding
its other tests used to evaluate applicants for employ-
ment, and those studies were well over 100 pages and
consisted of multiple volumes. (Opp. at 11 (citing Pl.’s
Ex. 10).) Here, in comparison, the Vaughn Index pro-
vided by the FAA indicates that it only recovered
three documents regarding the biographical assess-
ment used in 2015, totaling nine pages. (Id.) Plaintiff
argues that the FAA “may not be fully forthcoming
about this matter” based in part on what he argues
 120a
are contradictory statements made by the FAA re-
garding the timing of the validation studies for the
2014 biographical assessment, and because the FAA
initially responded to Plaintiff’s FOIA request by in-
correctly searching for records regarding the bio-
graphical assessment employed in 2014 as opposed to
2015. (Id. at 11 (citing Pl.’s Ex. 1; Pl.’s Ex. 14).)

These speculative claims regarding whether

FAA’s Office of the Chief Counsel has additional rec-
ords responsive to Plaintiff’s FOIA request are insuf-
ficient to rebut the good faith afforded Ms. Armstead’s
declaration. As explained by Ms. Armstead, the FAA
made comprehensive changes to the ATCS selection
and hiring process beginning in 2012, and revised the
biographical assessment before the 2015 vacancy an-
nouncement. (Decl. Armstead ¶¶ 7, 10.) Plaintiff sub-
mits no evidence that the FAA validation studies em-
ployed in previous hiring years would be the same or
substantially similar to the studies of the 2015 bio-
graphical assessment. Moreover, Plaintiff fails to
demonstrate how the FAA’s initial search of the
wrong records conveys bad faith on the part of the
agency, when a second search was conducted and re-
sponsive records were located. Accordingly, Plaintiff
fails to meet his burden of presenting evidence to
show a genuine issue of material fact regarding
whether the search conducted by the FAA was ade-
quate under FOIA.

B. The FAA’s Application of FOIA Exemp-

tion 5 to Responsive Records

Where responsive records are withheld pursuant

to an exemption to disclosure, see 5 U.S.C. § 552(b),
 121a
the agency bears the burden of justifying its withhold-
ings, see id. § 552(a)(4)(B). To do so, it must (1) iden-
tify each document withheld; (2) state the statutory
exemption claimed; and (3) explain how disclosure
would damage the interests protected by the claimed
exemption. Citizens Comm’n on Human Rights, 45
F.3d at 1326 n.1; see also Spurlock, 69 F.3d at 1012
n.1 (citing Vaughn v. Rosen, 484 F.2d 820, 828 (D.C.
Cir. 1973)). Here, the FAA argues that it is entitled to
summary judgment because the records it withheld,
identified in a Vaughn Index, constitute privileged at-
torney work-product and attorney-client communica-
tions, and are thus protected under FOIA Exemption
5.

Under FOIA Exemption 5, set forth at 5 U.S.C.

§ 552(b)(5), an agency may withhold documents that
constitute “‘inter-agency or intra-agency memoran-
dums or letters which would not be available by law
to a party other than an agency in litigation with the
agency.’” Dep’t of Inter. v. Klamath Water Users Prot.
Ass’n, 532 U.S. 1, 8 (2001) (quoting 5 U.S.C.
§ 552(b)(5)). To fall within this privilege, a document
must satisfy two conditions: (1) its source must be a
government agency, and (2) it must fall within the
ambit of a privilege against discovery under judicial
standards that would govern litigation against the
agency that holds it. Id. Exemption 5 thus protects
documents from disclosure that would be covered by
the executive deliberative process privilege, attorney
work-product privilege, and attorney-client privilege.
Pac. Fisheries, Inc. v. United States, 539 F.3d 1143,
1148 & n.1 (9th Cir. 2008). The agency’s burden of jus-
tifying its withholding of records may be sustained by
submitting declarations that provide a clear and
 122a
detailed analysis of the requested documents and the
agency’s reasons for invoking the exemption. See Lion
Raisins v. U.S. Dep’t of Agric., 354 F.3d 1072, 1082
(9th Cir. 2004) (overruled on other grounds).

The FAA offers the Vaughn Index and declara-

tions of Ms. Armstead and John C. Scott, Chief Oper-
ating Officer of APTMetrics, to support its argument
that the records in the Office of the Chief Counsel’s
possession, withheld under Exemption 5, were cre-
ated by APTMetrics at the request of counsel in re-
sponse to the FAA having received “proposed notice of
suit letters from an attorney affiliated with an inter-
est group alleging that the FAA’s hiring changes
amounted to discrimination” and learning that unsuc-
cessful applicants were considering filing, or had filed
complaints addressing the FAA’s hiring practices.
(Decl. Armstead ¶¶ 12-13, 22; see also id. ¶¶ 8-13, 18-
19, 23; Motion at 12; Reply in Support at 4-5; Decl.
Scott ¶¶ 6-8.)

The FAA further argues that the documents are

protected under the attorney-client privilege doctrine
because they include “records between counsel and
client, including legal advice of counsel and/or records
that were not disclosed outside the attorney-client re-
lationship.” (Motion at 13; see also id. (“Because these
communications contained legal advice, the agency
properly withheld the records as attorney-client priv-
ileged.”).) The FAA relies on the argument that, as a
consultant, APTMetrics “stood in the shoes” of FAA.
(Reply in Support at 8; see also Decl. Armstead ¶ 6;
Decl. Scott ¶ 9.)
 123a
The Court finds that the records withheld by the
FAA regarding the 2015 biographical assessment con-
stitute inter-agency memoranda created by a govern-
ment agency. Although the records were composed by
APTMetrics, courts have upheld the application of
FOIA Exemption 5 to materials composed and sup-
plied by outside contractors. See, e.g., Klamath, 532
U.S. at 10-11; Sakamoto v. E.P.A., 443 F. Supp. 2d
1182, 1191 (N.D. Cal. 2006).

The Court now considers whether the records con-

stitute privileged attorney work-product or attorney-
client communications.

i. Exemption Based on the Attorney

Work-Product Doctrine

The attorney work-product doctrine protects from

discovery documents and tangible things, or compila-
tions of materials, prepared by a party, his repre-
sentative, or an agent in anticipation of litigation.
United States v. Richey, 632 F.3d 559, 567 (9th Cir.
2011) (citing Fed. R. Civ. P. 26(b)). Thus, for records
to qualify for Exemption 5 protection under the attor-
ney work-product doctrine, the documents must (1) be
prepared in anticipation of litigation or for trial; and
(2) be prepared by or for another party or by or for
that other party’s representative. Id.

In circumstances where a document was not pre-

pared exclusively for litigation, the Ninth Circuit em-
ploys the “because of” test. Id. These so-called dual
purpose documents will be deemed prepared because
of litigation, and thus protected from disclosure under
the attorney work-product doctrine, if in light of the
 124a
nature of the document and the factual situation in a
particular case, the document can be fairly said to
have been prepared or obtained because of the pro-
spect of litigation. Id. In applying the “because of”
test, courts must consider the totality of the circum-
stances and determine whether the document was
created because of anticipated litigation, and would
not have been created in substantially similar form
but for the prospect of litigation. Id.

Plaintiff argues that the records withheld by the

FAA do not constitute protected attorney work prod-
uct for a number of reasons. First, Plaintiff argues
that the summaries were not created in anticipation
of litigation. (Opp. at 10.) In support, Plaintiff offers
evidence that the FAA had previously conducted and
published online validation studies of the tests it for-
merly used to evaluate applicants for ATCS positions
without threat of litigation. (Id.) However, it is undis-
puted that the former tests used by the FAA before
2014 to screen applicants differed in material respects
from the biographical assessments employed in 2014
and 2015. (Pl.’s Ex. 1.) Therefore, the fact that the
FAA may have published validation studies regarding
the tests used by the FAA in 2001 and 2013 (see Pl.’s
Exs. 1, 10) does not indicate that summaries prepared
for the FAA by APTMetrics were not created in antic-
ipation of litigation. Plaintiff’s other arguments—
based on evidence that the FAA continues to evaluate
and validate its hiring processes, that APTMetrics
was originally hired to work only until the end of
2014, and that APTMetrics’s website states that vali-
dation studies should be disclosed to ensure a trans-
parent system (Opp. at 10, 15, 21 (citing Dkt. No. 27-
1, Pl.’s Exhs. 1, 3, 4, 5, 6, 12, 15, 16, 17))—also do not
 125a
create a genuine issue of material fact regarding
whether the documents at issue here were created in
anticipation of litigation. (See also Dkt. No. 27-1,
Ex. 15 (Memorandum from FAA dated February 11,
2016, indicating that the FAA had engaged APT-
Metrics, an external consulting firm, to assist the
agency in evaluating the FAA’s hiring procedures).)

Second, Plaintiff argues that work product cre-

ated by APTMetrics cannot constitute protected attor-
ney work product because APTMetrics is neither
FAA’s attorney nor the client. (Opp. at 12-13.) Docu-
ments may be considered attorney work product, how-
ever, even where they are created by consultants at
the request of counsel. See Sakamoto, 443 F. Supp. 2d
at 1191 (upholding agency’s invocation of Exemption
5 to protect documents prepared by private contractor
hired to perform audit for the agency). Therefore, the
records still qualify for protection under Exemption 5,
despite the fact that they were created by APT-
Metrics, who was hired to provide consultation to the
FAA regarding hiring practices.

Third, Plaintiff argues that the records are not

subject to protection under the work-product doctrine
because they “merely reveal facts,” and underlying
facts are not protected by the attorney work-product
doctrine. (Opp. at 13-14.) However, under FOIA, an
agency need not segregate and disclose a document’s
factual contents if the document itself is protected
from disclosure pursuant to the attorney work-prod-
uct privilege. Pac. Fisheries, Inc., 539 F.3d at 1148. In
determining whether a document is protected under
Exemption 5, courts consider whether the document
would be routinely disclosed upon a showing of
 126a
relevance during discovery. FTC v. Grolier, Inc.,
462 U.S. 19, 26 (1983). Under the rules of civil discov-
ery, parties seeking discovery of factual work product
are required to make a showing of “substantial need”
and “undue hardship.” Id. at 27. Therefore, because
such documents are not “routinely” or “normally” dis-
closed during discovery, they are protected by FOIA
Exemption 5. Id.

Fourth, Plaintiff argues that the records at issue

could not have been prepared in anticipation of litiga-
tion because “[t]here was no litigation that could have
been anticipated in relation to the validation study or
its summary.” (Opp. at 14; see also id. 14-15.) How-
ever, it is undisputed that the FAA received notice as
early as 2013 that the agency could be subject to liti-
gation as a result of its use of the biographical assess-
ments in 2014 and 2015, including litigation based on
allegations that the biographical assessment resulted
in discriminatory hiring practices. (See Decl. Arm-
stead ¶¶ 8, 9, 12, 13, 22.) The attorney work-product
doctrine protects documents prepared in contempla-
tion of litigation, including administrative proceed-
ings. NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
154 (1975); Schoenman v. F.B.I., 573 F. Supp. 2d 119,
143 (D.D.C. 2008).

Fifth, Plaintiff argues that the records were not

created in anticipation of litigation because the FAA
was required by law to conduct the studies and pre-
pare the documents requested. (Opp. at 15-18.) How-
ever, the statutes and regulations cited by Plaintiff in
support of this argument, specifically 42 U.S.C.
 127a
§ 2000e-2(h) and 29 C.F.R. § 1607, impose no such re-
quirement.1

Sixth, Plaintiff argues that the records should not

be protected under the attorney work-product doc-
trine because they were created by APTMetrics for
the FAA in the ordinary course of business. (Opp. at
15-18.) Although documents prepared in the ordinary
course of business are not protected under the doc-
trine, see United States v. Adlman, 134 F.3d 1194,
1202 (2d Cir. 1998), in the Ninth Circuit, documents
created in anticipation of litigation do not lose their
protection merely because they were also created to
assist with a business decision. In re Grand Jury Sub-
poena (Mark Torf/Torf Environ. Mgmt.), 357 F.3d
900, 910 (9th Cir. 2004). These so-called “dual pur-
pose” documents can fall within the ambit of the
work-product doctrine if “their litigation purpose so
permeates any non-litigation purpose that the two
purposes cannot be discretely separated from the fac-
tual nexus as a whole.” Id. Given the lack of evidence
that the summaries were created in the ordinary
course of business, and evidence supporting the con-
clusion that they were instead created in response to
expected litigation, there is no genuine dispute of

1 The Equal Employment Opportunity Commission’s Uniform

Guidelines on Employee Selection Procedures (“Uniform Guide-
lines”), codified at 29 C.F.R. § 1607, are designed to help agen-
cies adhere to the anti-discrimination requirements of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(h). The Uni-
form Guidelines “are not legally binding.” Clady v. Los Angeles
Cty., 770 F.2d 1421, 1428 (9th Cir. 1985).
 128a
material fact that these records remain protected
from disclosure under Exemption 5.

Seventh, Plaintiff argues that the Court should

find that his “substantial need” for the records and
the “undue hardship” of acquiring that information
balances in favor of disclosure, despite the fact that
the records may be privileged. (Opp. at 18-19.) In sup-
port, Plaintiff cites to cases where courts have ordered
the production of privileged information be disclosed
under the rules of discovery. These cases, however, do
not consider that, under FOIA, this Court’s authority
to order the disclosure of records is “dependent on a
showing that an agency has (1) improperly (2) with-
held (3) agency records,” Spurlock, 69 F.3d at 1015
(quoting Kissinger v. Reporters Committee for Free-
dom of the Press, 445 U.S. 136, 150 (1980)) (internal
quotation marks omitted). Congress “did not invite a
judicial weighing of the benefits of evils of disclosure
on a case-by-case basis,” such that district courts can
order that records properly withheld under FOIA be
produced where the plaintiff demonstrates “substan-
tial need.” F.B.I. v. Abramson, 456 U.S. 615, 631
(1982); see also Sears, Roebuck & Co., 421 U.S. at 149
n.16.

Finally, Plaintiff argues that the work-product

privilege does not apply in this case because the FAA
has previously published validation studies. (Opp. at
20-22.) However, there is no evidence that the sum-
maries withheld under Exemption 5 were previously
disclosed by the FAA. Moreover, even if the FAA has
previously disclosed its hiring processes, including
the fact that it validates its hiring procedures, that
does not preclude Exemption 5 protection for records
 129a
regarding the same subject matter that were created
in anticipation of litigation.

The FAA has satisfied its burden of demonstrat-

ing, through the detailed declarations of Ms. Arm-
stead and Mr. Scott, and through the Vaughn Index
attached to the Motion, that the records the FAA
withheld under Exemption 5 are protected by the at-
torney work-product privilege.

ii. Exemption for Attorney-Client Privi-

leged Communications

An eight-part test determines whether infor-

mation is covered by the attorney-client privilege:

(1) Where legal advice of any kind is sought

(2) from a professional legal adviser in his
capacity as such, (3) the communications re-
lating to that purpose, (4) made in confi-
dence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure
by himself or by the legal adviser, (8) unless
the protection be waived.

United States v. Graf, 610 F.3d 1148, 1156 (9th Cir.

2010). The privilege encompasses confidential facts
communicated by the client to the attorney, as well as
opinions rendered by the attorney based on those con-
fidential facts. United States v. Martin, 278 F.3d 988,
999 (9th Cir. 2002).

The FAA offers no evidence that the records with-

held involve a client seeking legal advice from a pro-
fessional legal adviser. Although the records were
 130a
prepared by APTMetrics at the request of the Office
of Chief Counsel, they contain no request for, or dis-
cussion of, legal advice. Instead, the Office of Chief
Counsel asked APTMetrics “to summarize elements
of [the] validation work related to the use of the [bio-
graphical assessment] as an instrument in the ATCS
selection process.” (Armstead Decl. ¶ 10.) The Court
finds no evidence that legal advice was sought in con-
nection with those records. Accordingly, the withheld
records do not fall within the scope of the attorney-
client privilege.

C. Request for Referral for Independent

Investigation

Plaintiff requests that this matter be referred for

an independent investigation pursuant to 5 U.S.C.
§ 552(a)(4)(F). (See Compl. ¶¶ 30-31.) This statute di-
rects the Merit Systems Protection Board’s Special
Counsel to initiate an investigation to determine
whether disciplinary action is warranted against an
agency officer or employee who improperly withheld
nonexempt records. Having found that the records
were properly withheld under Exemption 5, the Court
denies Plaintiff’s request.
 131a
IV. CONCLUSION

The FAA has met its burden of demonstrating

that (1) there are no material facts in dispute; (2) that
it has conducted an adequate search for responsive
records; and (3) that each of the responsive records it
has located has either been produced or is exempt
from disclosure. Zemansky, 767 F.2d at 571. The
Court therefore GRANTS Defendant’s Motion for
Summary Judgment.

IT IS SO ORDERED.

DATED: November 10, 2016

/s/ Consuelo B. Marshall

CONSUELO B. MARSHALL
UNITED STATES DISTRICT JUDGE
 132a
APPENDIX D

5 U.S.C. § 552

Public information; agency rules, opinions, orders,

records, and proceedings

***

(b) This section does not apply to matters that are--

(1)(A) specifically authorized under criteria

established by an Executive order to be kept
secret in the interest of national defense or
foreign policy and (B) are in fact properly clas-
sified pursuant to such Executive order;

(2) related solely to the internal personnel

rules and practices of an agency;

(3) specifically exempted from disclosure by

statute (other than section 552b of this title),
if that statute--

(A)(i) requires that the matters be

withheld from the public in such a man-
ner as to leave no discretion on the is-
sue; or

(ii) establishes particular criteria for

withholding or refers to particular types
of matters to be withheld; and

(B) if enacted after the date of enact-

ment of the OPEN FOIA Act of 2009,
specifically cites to this paragraph.
 133a
(4) trade secrets and commercial or financial
information obtained from a person and privi-
leged or confidential;

(5) inter-agency or intra-agency memoran-

dums or letters that would not be available by
law to a party other than an agency in litiga-
tion with the agency, provided that the delib-
erative process privilege shall not apply to rec-
ords created 25 years or more before the date
on which the records were requested;

(6) personnel and medical files and similar

files the disclosure of which would constitute a
clearly unwarranted invasion of personal pri-
vacy;

(7) records or information compiled for law en-

forcement purposes, but only to the extent
that the production of such law enforcement
records or information (A) could reasonably be
expected to interfere with enforcement pro-
ceedings, (B) would deprive a person of a right
to a fair trial or an impartial adjudication,
(C) could reasonably be expected to constitute
an unwarranted invasion of personal privacy,
(D) could reasonably be expected to disclose
the identity of a confidential source, including
a State, local, or foreign agency or authority or
any private institution which furnished infor-
mation on a confidential basis, and, in the
case of a record or information compiled by
criminal law enforcement authority in the
course of a criminal investigation or by an
agency conducting a lawful national security
 134a
intelligence investigation, information fur-
nished by a confidential source, (E) would dis-
close techniques and procedures for law en-
forcement investigations or prosecutions, or
would disclose guidelines for law enforcement
investigations or prosecutions if such disclo-
sure could reasonably be expected to risk cir-
cumvention of the law, or (F) could reasonably
be expected to endanger the life or physical
safety of any individual;

(8) contained in or related to examination, op-

erating, or condition reports prepared by, on
behalf of, or for the use of an agency responsi-
ble for the regulation or supervision of finan-
cial institutions; or

(9) geological and geophysical information and

data, including maps, concerning wells.

Any reasonably segregable portion of a record shall be

provided to any person requesting such record after
deletion of the portions which are exempt under this
subsection. The amount of information deleted, and
the exemption under which the deletion is made, shall
be indicated on the released portion of the record, un-
less including that indication would harm an interest
protected by the exemption in this subsection under
which the deletion is made. If technically feasible, the
amount of the information deleted, and the exemption
under which the deletion is made, shall be indicated
at the place in the record where such deletion is made.

***