Jobe v. Nat'l Transp. Safety Bd.

• Citation: 1 F.4th 396
• Decision Date: 17 June 2021
• Docket Number: No. 20-30033,20-30033
• Parties: Tony B. JOBE, Esquire, Plaintiff—Appellee, v. NATIONAL TRANSPORTATION SAFETY BOARD, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

1 F.4th 396

Tony B. JOBE, Esquire, Plaintiff—Appellee,

v.NATIONAL TRANSPORTATION SAFETY BOARD, Defendant—Appellant.

No. 20-30033

United States Court of Appeals, Fifth Circuit.

FILED June 17, 2021

Tony B. Jobe, Esq., Law Offices of Tony B. Jobe, Covington, LA, for Plaintiff - Appellee

Brock Darren Dupre, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, Benjamin M. Shultz, Samantha Lee Chaifetz, Attorney, Mark Bernard Stern, Esq., U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, for Defendant - Appellant

Before Clement, Ho, and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

Aircraft disasters are investigated by a federal agency called the National Transportation Safety Board (NTSB). The inquiry usually includes representatives from the aircraft's manufacturer or operator, who are uniquely positioned to shed light on what went wrong. This case, involving the tragic crash of a sightseeing helicopter in Hawaii, asks whether communications between the NTSB and such outside consultants must be disclosed to the public under the Freedom of Information Act (FOIA).

Answering that question turns on the scope of FOIA's "Exemption 5," which shields privileged "intra-agency" documents from disclosure. See 5 U.S.C. § 552(b)(5). Several circuits, including ours, read Exemption 5 to protect communications not only among an agency's employees, but also with some non-agency experts whose input the agency has solicited. This is known as the "consultant corollary." See Hoover v. U.S. Dep't of the Interior , 611 F.2d 1132, 1137–38 (5th Cir. 1980) ; Wu v. Nat'l Endowment for Humans. , 460 F.2d 1030, 1032 (5th Cir. 1972). The district court ruled the corollary did not apply to documents the NTSB exchanged during its investigation with representatives from the helicopter's operator and manufacturers. Relying on Department of the Interior v. Klamath Water Users Protective Association , 532 U.S. 1, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001), the court reasoned the corollary does not protect even privileged communications with "self-interested" consultants like those.

The district court erred. Klamath does not stand for the broad principle that a consultant's "self-interest" always excludes it from Exemption 5. And, properly applied, the consultant corollary squarely covers the NTSB's communications with the non-agency parties here. By necessity, the NTSB solicits technical input from entities whose aircraft are under investigation. But the process only finds facts and issues safety recommendations; it does not assign liability or have adverse parties, and its conclusions are not admissible in litigation. Moreover, the agency closely supervises non-agency parties and controls the release of any non-public information. Subjecting the NTSB's communications with consultants to broad public disclosure would inhibit the agency's ability to receive candid technical input from those best positioned to give it.

We therefore conclude that the outside parties solicited by the NTSB qualify as "consultants" under Exemption 5's corollary. That does not end the case, however—deeming documents "intra-agency" is only the first step in a two-part assessment. See Klamath, 532 U.S. at 9, 121 S.Ct. 1060 ("[T]he first condition of Exemption 5 is no less important than the second"). Exemption 5 does not shield all intra-agency documents from disclosure, only those which are "normally privileged in the civil discovery context." N. L. R. B. v. Sears, Roebuck & Co. , 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). Cf. U.S. Dep't of Just. v. Julian , 486 U.S. 1, 14, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988) (Exemption 5 does not apply to documents that are "routinely available" in discovery). On remand, the district court will need to undertake the second facet of the Exemption 5 inquiry: determining whether the documents at issue are subject to a litigation privilege ordinarily available to a government agency. See, e.g. , U.S. Fish & Wildlife Serv. v. Sierra Club, Inc. , ––– U.S. ––––, 141 S. Ct. 777, 783, 209 L.Ed.2d 78 (2021) ("Exemption 5 incorporates the privileges available to Government agencies in civil litigation, such as the deliberative process privilege, attorney-client privilege, and attorney work-product privilege.").

We reverse the district court's judgment and remand for further proceedings consistent with this opinion.

I.

A.

In 2011, a helicopter crashed while on a sightseeing tour in Hawaii, killing the pilot and all four passengers. The helicopter was operated by a U.S. company, Blue Hawaiian Helicopters. It was manufactured by a French company, Eurocopter, and its engine was manufactured by another French company, Turbomeca.

Aircraft accidents are investigated by the NTSB, which conducts "fact-finding proceedings" to determine probable cause and issue safety recommendations. See 49 C.F.R. § 831.4 (2016) ; 49 U.S.C. § 1131(a)(1)(A).¹ The agency does not assess "rights or liabilities," and its final report cannot be admitted in a civil action. 49 C.F.R. §§ 831.4, 835.2 ; 49 U.S.C. § 1154(b).² Investigations are supervised by an "Investigator in Charge" ("IIC"), 49 C.F.R. § 831.8, who may designate "parties" to the investigation. Id. § 831.11(a)(1). A party is an entity "whose employees, functions, activities, or products were involved in the accident or incident and who can provide suitable qualified technical personnel actively to assist in the investigation." Ibid. Parties are under the NTSB's direct supervision. Id. §§ 831.8(b) ; 831.11(a)(2). Non-agency parties must sign a "Statement of Party Representatives to NTSB Investigation," id. § 831.11(b), which commits them not "to prepare for litigation or pursue other self-interests." Parties may not be represented "by any person who also represents claimants or insurers," or "occup[ies] a legal position," id. § 831.11(a)(3), nor may they release information obtained during an investigation, subject to specific exceptions, id. § 831.13(b).

As part of the helicopter crash investigation, the IIC appointed party representatives from Blue Hawaiian and the Federal Aviation Administration. Under an international convention, a French agency (the "Bureau of Enquiry and Analysis for Civil Aviation Safety," or "BEA") served as an accredited representative. See CONVENTION ON INT'L CIVIL AVIATION , Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S. 295.³ The BEA assigned technical advisors from Eurocopter and Turbomeca to assist. The advisors were allowed to inspect the crash site, take notes, discuss accident scenarios with other team members, and perform other investigative activities. Although supervised by the BEA, the advisors were subject to the IIC's control. ICAO Annex 13, § 5.25.

B.

In 2014, after the NTSB finished its investigation, Tony Jobe submitted an information request under 49 C.F.R. § 837.1 – 4.⁴ Jobe is a lawyer who represents the families of the crash victims. Although the NTSB denied Jobe's request because it lacked the required affidavit, see id. § 837.4(b)(2), the agency converted it into a FOIA request. The NTSB then searched 13,000 pages for any records related to the crash and disclosed about 4,000 pages to Jobe. Of the 9,000 undisclosed pages, 2,349 were withheld under Exemption 5, which exempts "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).

In 2016, Jobe submitted a second FOIA request for eleven specific categories of documents relating to the on-scene phase of the investigation. The NTSB determined it had already disclosed all releasable documents but nonetheless offered to re-review the 2,349 withheld pages. The agency ultimately released another 159 to Jobe.

Seeking additional disclosures, Jobe filed suit in the Eastern District of Louisiana. See 5 U.S.C. § 552(a)(4)(B). In response, the NTSB produced a Vaughn index⁵ describing 215 withheld documents responsive to the eleven categories in Jobe's second FOIA request. Both parties moved for summary judgment.

The district court rejected Jobe's claims that the Vaughn index was incomplete and that the NTSB failed to segregate releasable from nonreleasable material. The court also determined that the NTSB properly invoked Exemption 5 as to several internal documents. (Jobe does not challenge those rulings on appeal.) The court, however, ruled that documents sent among the NTSB, Blue Hawaiian, Eurocopter, and Turbomeca were not "intra-agency" and so did not qualify for withholding under Exemption 5. Specifically, the court declined to apply the "consultant corollary," which deems "intra-agency" certain communications with or materials produced by outside experts who aid in agency decision-making. See Hoover , 611 F.2d at 1137–38 ; Wu , 460 F.2d at 1032. The court thus granted Jobe partial summary judgment and ordered the NTSB to produce about 125 pages. The order was stayed pending the agency's appeal.

II.

We review a summary judgment de novo . Digital Drilling Data Sys., L.L.C. v. Petrolink Servs., Inc. , 965 F.3d 365, 373 (5th Cir. 2020). FOIA exemptions are "exclusive" and "narrowly construed." Dep't of the Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (citations omitted); see also Sharyland Water Supply Corp. v. Block , 755 F.2d 397, 398 (5th Cir. 1985) (Because "FOIA is designed to promote the disclosure of information ... [,] exemptions from it are not to be read broadly.") (citations omitted). Disclosure is strongly favored. U.S. Dep't of State v. Ray , 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991). Nonetheless, "FOIA expressly recognizes that important interests are served by its exemptions, and those exemptions are as much a part of FOIA's purposes and policies as the statute's disclosure requirement." Food Marketing Inst. v. Argus Leader Media , ––– U.S. ––––, 139 S. Ct. 2356, 2366, 204...