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Date: 10-24-2019
Case Style:
Jorge Alejandro Rojas v. Federal Aviation Administration
Case Number: 17-17349
Judge: Sandra S. Ikuta
Court: United States Court of Appeals for the Ninth Circuit on appeal from the District of Arizona (Maricopa County)
Plaintiff's Attorney:
Call 918-582-6422 if you need help finding a freedom of information act lawyer in Phoenix, Arizona.
Defendant's Attorney: Paul A. Bullis, Krissa M. Lanham, Elizabeth A. Strange
Description:
Plaintiff Jorge Rojas filed several requests under the
Freedom of Information Act, 5 U.S.C. § 552 (FOIA), and the
Privacy Act of 1974, 5 U.S.C. § 552a, with the Federal
Aviation Administration (FAA), seeking records related to
the Biographical Assessment, a screening tool introduced by
the FAA in 2014 as part of the air traffic controller hiring
process. In response to Rojas’s requests, the FAA produced
hundreds of pages of records, but withheld scoring
information for the Biographical Assessment; the personal,
non-FAA email addresses of FAA employees; and hundreds
of emails that it concluded fell within exemptions to FOIA
and the Privacy Act, or were not agency records. The district
court held that the FAA properly withheld information and
documents. For the reasons that follow, we affirm in part,
reverse in part, and vacate and remand in part.
I
Although FOIA and the Privacy Act are different in
design and scope, they both contemplate that members of the
public will have access to public records, subject to specified
exemptions.
FOIA was enacted in 1966 to facilitate public access to
“any and all records not exempt from disclosure.” Exner v.
Fed. Bureau of Investigation, 612 F.2d 1202, 1203 (9th Cir.
1980); see also Forest Serv. Emps. for Envtl. Ethics v. U.S.
Forest Serv., 524 F.3d 1021, 1023 (9th Cir. 2008). Under
FOIA, “each agency, upon any request for records which (i)
reasonably describes such records and (ii) is made in
6 ROJAS V. FAA
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.” 5 U.S.C.
§ 552(a)(3)(A). A district court “has jurisdiction to enjoin the
agency from withholding agency records and to order the
production of any agency records improperly withheld.” Id.
§ 552(a)(4)(B). Therefore, when an agency withholds
documents, a threshold inquiry is whether they constitute
“agency records.” U.S. Dep’t of Justice v. Tax Analysts,
492 U.S. 136, 142 (1989) (quoting Kissinger v. Reporters
Comm. for Freedom of Press, 445 U.S. 136, 150 (1980)).
“The burden is on the agency to demonstrate, not the
requester to disprove, that the materials sought are not
‘agency records’ or have not been ‘improperly’ ‘withheld.’”
Id. at 142 n.3.
While FOIA “establishes a judicially enforceable public
right” to secure access to government records, it also
“contemplates that some information may legitimately be
kept from the public.” Elec. Frontier Found. v. Office of the
Dir. of Nat’l Intelligence, 639 F.3d 876, 882–83 (9th Cir.
2010) (internal quotation marks omitted), abrogated on other
grounds by Animal Legal Def. Fund v. U.S. Food & Drug
Admin., 836 F.3d 987, 989 (9th Cir. 2016) (en banc) (per
curiam) (“ALDF”). The statute contains nine exemptions,
pursuant to which federal agencies can withhold information
otherwise subject to FOIA’s disclosure requirement. Id. at
883; 5 U.S.C. § 552(b)(1)–(9). Exemption 2 provides that the
disclosure requirement “does not apply to matters that are . . .
related solely to the internal personnel rules and practices of
an agency.” Id. § 552(b)(2). Exemption 6 provides that
FOIA does not apply to “personnel and medical files and
similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” Id. § 552(b)(6).
ROJAS V. FAA 7
Because of FOIA’s “strong presumption in favor of
disclosure,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173
(1991), these exemptions must be “given a narrow compass.”
Tax Analysts, 492 U.S. at 151. “[A]n agency that invokes one
of the statutory exemptions to justify the withholding of any
requested documents or portions of documents bears the
burden of demonstrating that the exemption properly applies
to the documents.” Lahr v. Nat’l Transp. Safety Bd.,
569 F.3d 964, 973 (9th Cir. 2009).
Though “the Privacy Act and FOIA substantially overlap
. . . the two statutes are not completely coextensive.”
Greentree v. U.S. Customs Serv., 674 F.2d 74, 78 (D.C. Cir.
1982). While “FOIA was intended to increase the public’s
access to governmental information and was drafted with a
strong presumption for disclosure to allow public scrutiny of
government processes,” Pierce v. Dep’t of U.S. Air Force,
512 F.3d 184, 191 (5th Cir. 2007), the Privacy Act’s primary
goal is to “protect the privacy of individuals through
regulation of the collection, maintenance, use, and
dissemination of information by federal agencies,” Rouse v.
U.S. Dep’t of State, 567 F.3d 408, 413 (9th Cir. 2009)
(internal quotation marks omitted); see also 5 U.S.C. § 552a.
The Privacy Act accordingly “provides agencies with
‘detailed instructions for managing their records.’” Rouse,
567 F.3d at 413 (quoting Doe v. Chao, 540 U.S. 614, 618
(2004)). Nevertheless, as part of the effort to give individuals
more control over information about themselves, the Privacy
Act gives individuals a right to gain access to government
8 ROJAS V. FAA
records concerning themselves “upon request.” 5 U.S.C.
§ 552a(d)(1).1
As with the public access right granted by FOIA, the
Privacy Act’s private access right is subject to numerous
exemptions. One of these exemptions provides that an
agency may refrain from disclosing records comprised of
“testing or examination material used solely to determine
individual qualifications for appointment or promotion in the
Federal service the disclosure of which would compromise
the objectivity or fairness of the testing or examination
process.” Id. § 552a(k)(6) (“Exemption (k)(6)”).2 As with
1 5 U.S.C. § 552a(d)(1) provides:
Each agency that maintains a system of records shall—
(1) upon request by any individual to gain access to his
record or to any information pertaining to him which is
contained in the system, permit him and upon his
request, a person of his own choosing to accompany
him, to review the record and have a copy made of all
or any portion thereof in a form comprehensible to him,
except that the agency may require the individual to
furnish a written statement authorizing discussion of
that individual’s record in the accompanying person’s
presence.
2 5 U.S.C. § 552a(k)(6) provides:
(k) Specific exemptions.–The head of any agency may
promulgate rules, in accordance with the requirements
[of specified sections], to exempt any system of records
within the agency from [specified requirements,
including the disclosure requirement] if the system of
records is
. . .
ROJAS V. FAA 9
FOIA, if an agency seeks to invoke an exemption under the
Privacy Act, “the burden is on the agency” to show that
withholding the document was justified. Id. § 552a(g)(3)(A).
II
We now turn to the facts giving rise to this appeal.
A
The FAA is responsible for regulating civil aviation,
including air traffic management, throughout the United
States. It retains more than 14,000 air traffic control
specialists 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. See
Fed. Aviation Admin., Aviation Careers (last modified
July 31, 2019), https://www.faa.gov/jobs/career_fields/
aviation_careers. Because an air traffic controller’s work
contains no margin for error and requires unbroken
concentration, the job can be grueling. Working as an air
traffic controller is considered to be among the highest
pressure jobs in America. For this reason, the FAA puts new
air traffic controllers through an intense training regimen and
requires that air traffic controllers retire by age 56.
Before changing its hiring system in 2014, the FAA gave
hiring preference to air traffic controller applicants who
(6) testing or examination material used solely to
determine individual qualifications for appointment or
promotion in the Federal service the disclosure of
which would compromise the objectivity or fairness of
the testing or examination process.
10 ROJAS V. FAA
earned aviation degrees from FAA-accredited schools (called
Collegiate Training Initiative, or CTI, schools) and who
scored highly on the Air Traffic Selection and Training
examination (AT-SAT test), a proctored, eight-hour
examination that tested cognitive skills related to working as
an air traffic controller. In 2013, there were about 3,000
college graduates with FAA accredited degrees. These
individuals were placed on the FAA’s Qualified Applicant
Register and were therefore eligible to apply for air traffic
controller job openings.
Around this time, the FAA projected that there would be
a surge in retirement of the air traffic controllers who had
been hired in 1981 in the wake of the Professional Air Traffic
Controllers Association strike. See James L. Outtz & Paul J.
Hanges, FAA, Barrier Analysis of the Air Traffic Control
Specialists Centralized Hiring Process 14 (2013). Some
11,000 air traffic controllers were expected to leave the
agency by 2014, and the FAA developed a plan to hire some
12,500 controllers during the period from 2013 to 2023. Id.
In connection with this planned hiring surge, the FAA
commissioned a report, the “Barrier Analysis of the Air
Traffic Control Specialists (ATCS) Centralized Hiring
Process” (“Barrier Analysis”), to determine whether its
workplace was “free of barriers that impede full opportunities
to all persons in the workplace.” Id. After reviewing the
FAA’s current hiring practices and levels of diversity in its
workforce, the Barrier Analysis recommended that the FAA
place less weight on the AT-SAT as a qualifying metric
because parts of the test showed “substantial problems with
regard to [race and national origin] and gender diversity.” Id.
at 20, 23–24.
ROJAS V. FAA 11
Based on the results of the Barrier Analysis, the FAA
announced “an historic commitment to transform the Federal
Aviation Administration (FAA) into a more diverse and
inclusive workplace that reflects, understands, and relates to
the diverse customers we serve.” Id. at 1. Consequently, in
2014, the FAA significantly changed its hiring system in
order to recruit more diverse candidates. The FAA
eliminated the approximately 3,000 existing applicants from
its Qualified Applicant Register. Going forward, the FAA
would not consider applicants’ “well-qualified” designations
on the AT-SAT or their CTI qualifications, which had
previously given applicants a hiring preference. Instead, as
part of the initial screening of applicants, the FAA stated it
would deem candidates to be qualified if they had a high
school diploma, spoke English, and passed the FAA’s new
test, called the Biographical Assessment.
The Biographical Assessment is a 62-question multiple
choice test designed to assess candidates based on their
aviation aptitude and likelihood of completing air traffic
controller training. According to press reports, the
Biographical Assessment includes multiple choice questions
about such topics as: “[t]he number of different high school
sports” a candidate played, or the age at which the candidate
first started to earn money. Other questions included: “How
would you describe your ideal job? What has been the major
cause of your failures? More classmates would remember me
as humble or dominant?” Unlike the AT-SAT testing
process, applicants took the Biographical Assessment on their
personal computers, without proctoring. Passage rates for the
Biographical Assessment were low; of 28,000 applicants who
took the Biographical Assessment in 2015, fewer than 10%
passed. The scoring information for this test was
confidential; the FAA did not release the minimum passing
12 ROJAS V. FAA
score for the Biographical Assessment, and individual
applicants were told only if they had passed or failed and
were not informed of their individual scores. The FAA
required that an applicant pass the Biographical Assessment
to take the AT-SAT.
The FAA’s new hiring system generated significant press
attention. Several newspapers discussed the FAA’s “mov[e]
away from merit-based hiring criteria in order to increase the
number of women and minorities who staff airport control
towers.” Jason L. Riley, Opinion, Affirmative Action Lands
in the Air Traffic Control Tower, Wall St. J. (June 2, 2015).
Flying Magazine reported that the FAA’s new hiring system
resulted in the rejection of “top ranked students from highly
respected [air traffic controller] programs . . . . based on the
bio-data assessment results.” Pia Bergovist, Is the FAA
Rejecting the Best Controllers?, Flying Magazine (Dec. 2,
2014).
In addition, one news network reported (after a six-month
investigation) that an FAA employee who was a member of
the National Black Coalition of Federal Aviation Employees
(NBCFAE) was leaking Biographical Assessment answers to
student members of the NBCFAE. Trouble in the Skies, Fox
Business News (May 20, 2015). According to the “Trouble
in the Skies” report, a few days after the FAA hiring process
started, a candidate for an air traffic controller job received a
recorded voice-text message from Shelton Snow, an FAA air
traffic controller and then-president of the NBCFAE’s
Washington Suburban Chapter. In the recorded message,
Snow stated he was aware that candidates “have been getting
rejection notices” due to failing the Biographical Assessment
test. To prevent NBCFAE applicants from failing the
Biographical Assessment, Snow offered “some valuable
ROJAS V. FAA 13
pieces of information that [he had] taken a screen shot of and
[that he was] going to send that to you via email.” The screen
shots were intended to show the correct answers to the
Biographical Assessment; Snow explained he was sharing
these screen shots so that as candidates “progress through the
stages [of the test],” the candidates could “refer to those
images so you will know which icons you should select.”
Snow stated he was “about 99 point 99 percent sure that it is
exactly how you need to answer each question in order to get
through the first phase.” In addition, the recorded message
stated that FAA “HR Representatives” could “sign off on [the
Biographical Assessment] before you actually click it.”
The FAA’s changes to its hiring system also captured the
attention of legislators and public officials. In June 2014, ten
members of Congress sent a letter to the FAA expressing
concerns and asking for information, including “metrics on
how the new hiring process has enhanced aviation safety
overall.” After “Trouble in the Skies” was published,
fourteen members of Congress sent a follow-up letter asking
the FAA to investigate “the report of possible cheating in the
latest hiring process, facilitated by the actions of an FAA
employee.” Finally, 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.
B
Jorge Rojas was enrolled at an accredited CTI school
when the FAA changed its hiring system. Pursuant to the
FAA’s new screening process, Rojas took the Biographical
Assessment, and was one of the many applicants who failed
the test. This made him ineligible to apply for an air traffic
14 ROJAS V. FAA
controller position. Suspecting that the FAA was engaging in
discriminatory practices and that agency employee Shelton
Snow was engaged in misconduct, Rojas sought to shed light
on the FAA’s conduct by obtaining more information about
the FAA’s change in hiring practices, its use of the
Biographical Assessment, and the cheating that had
reportedly taken place during the testing process.
On June 25, 2015, Rojas submitted a FOIA request to the
FAA (FOIA Request No. 9300), seeking all emails and chats
sent to and from Shelton Snow for the periods from
December 1, 2013, to March 30, 2014, and from January 1,
2015, to June 24, 2015. A few days later, Rojas submitted a
second FOIA request (FOIA Request No. 9333) and a Privacy
Act request, in which he requested the minimum passing
score for the Biographical Assessment, his own Biographical
Assessment score, and a copy of applicant information for a
particular air traffic controller opening.
The FAA failed to respond to these requests within the
20 days provided by statute. See 5 U.S.C. § 552(a)(6)(A)(i).
In August 2015, Rojas sued the FAA, alleging that it had
violated FOIA by failing to produce responsive documents.
In October 2015, the FAA provided a response to FOIA
Request No. 9333, stating that it was withholding the
minimum passing score and Rojas’s score on the
Biographical Assessment under FOIA Exemption 2, which
exempts from disclosure materials “related solely to the
internal personnel rules and practices of an agency.” 5 U.S.C.
§ 552(b)(2). The FAA also denied Rojas’s Privacy Act
request for the score Rojas had received on the Biographical
Assessment, citing Exemption (k)(6), which exempts
specified testing and examination material.
ROJAS V. FAA 15
In February 2016, the FAA gave Rojas a number of
documents in response to Request 9300, which had sought
Shelton Snow’s emails and chats. The FAA redacted the
personal email addresses of FAA employees from the
documents provided, citing FOIA Exemption 6, which
exempts from disclosure “personnel and medical files and
similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy.” 5 U.S.C.
§ 552(b)(6). At least two of the redacted documents
produced under seal indicated that FAA employees sent
emails relating to FAA’s changes to its hiring system to other
FAA employees at their personal email addresses. One email
from an FAA employee asked other employees to refer any
calls from the investigative reporter who authored “Trouble
in the Skies” to FAA Public Affairs. This email was
forwarded to other FAA employees, one of whom forwarded
the email to Shelton Snow at his FAA account as well as to
two redacted email accounts. In another email, Snow sent the
Barrier Analysis from his FAA account to two redacted email
addresses.
The FAA also withheld 202 emails and attachments on
the ground that they were not agency records subject to
FOIA. The withheld emails and attachments included emails
sent to or received from Snow in his capacity as a member of
the NBCFAE, emails to Snow from the National Air Traffic
Controllers Association (the exclusive bargaining
representative for air traffic controllers employed by the
FAA), personal emails between Snow and his friends or
acquaintances, and unsolicited advertisements.3 One of the
3 The FAA provided its justification for not disclosing emails in an
index, commonly known as a Vaughn index, see Vaughn v. Rosen,
484 F.2d 820 (D.C. Cir. 1973), to identify “the documents withheld, the
16 ROJAS V. FAA
withheld documents contained an inquiry about whether
study information for the FAA’s new aptitude test was
available online. The FAA stated that each withheld
document was “[n]ot an agency record.”
After providing these documents to Rojas, the FAA
moved for summary judgment on the ground that the
information it redacted was statutorily exempt from
disclosure and the emails and attachments it withheld were
not agency records subject to FOIA. In support of its claim
that disclosing Rojas’s test scores would compromise the
fairness of the Biographical Assessment, the FAA submitted
a sworn declaration from Rickie Cannon, the Deputy
Assistant Administrator for Human Resources at the FAA,
which described the FAA’s discovery of a cheating scheme
by air traffic controller applicants. These applicants had
compiled their answers to specific Biographical Assessment
questions to determine which answers to specific questions
were correlated with passing the Biographical Assessment.
According to Cannon, “[a]n applicant’s knowledge of his or
her test score is critical to this approach,” and therefore
providing test scores to applicants could further a cheating
scheme.4 Rojas opposed the summary judgment motion and
brought a cross-motion for summary judgment arguing that
the FAA’s claimed exemptions failed as a matter of law.
FOIA exemptions claimed, and a particularized explanation of why each
document falls within the claimed exemption.” Yonemoto v. Dep’t of
Veterans Affairs, 686 F.3d 681, 688 (9th Cir. 2012), (internal quotation
marks omitted) (quoting Lion Raisins v. U.S. Dep’t of Agric., 354 F.3d
1072, 1082 (9th Cir. 2004)), overruled on other grounds by ALDF,
836 F.3d at 989.
4 The FAA also submitted the document that the cheating ring created,
which compiled 359 responses from the 2014 Biographical Assessment.
ROJAS V. FAA 17
After an in camera review of the unredacted documents, the
court agreed with the FAA’s invocation of FOIA Exemptions
2 and 6 and Privacy Act Exemption (k)(6), and held that the
withheld documents were “personal emails regarding Snow
that do not respond to Rojas’s FOIA requests or the mission
of the FAA.” Accordingly, the court granted summary
judgment in favor of the FAA. Rojas timely appealed.
III
We review de novo the district court’s order granting
summary judgment. ALDF, 836 F.3d at 990. “[W]e view the
evidence in the light most favorable to the nonmoving party,
determine whether there are any genuine issues of material
fact, and decide whether the district court correctly applied
the relevant substantive law.” Id. at 989. We have
jurisdiction to review the district court’s grant of summary
judgment under 28 U.S.C. § 1291.
A
We first consider Rojas’s argument that the district court
erred in holding that the Biographical Assessment’s minimum
passing score and his own personal score were exempt from
disclosure under FOIA Exemption 2 and Privacy Act
Exemption (k)(6) as a matter of law.
Under Exemption 2, FOIA’s access requirements do not
apply to matters that are “related solely to the internal
personnel rules and practices” of the FAA. 5 U.S.C.
§ 552(b)(2). The Supreme Court has construed this
exemption in detail, defining most of the individual words.
See Milner v. Dep’t of Navy, 562 U.S. 562, 569 (2011).
According to Milner, the word “solely” has its dictionary
18 ROJAS V. FAA
definition of “exclusively or only.” Id. at 570 n.4 (internal
quotation marks omitted). Again using the dictionary, the
word “internal” means that “the agency must typically keep
the records to itself for its own use.” Id. (internal quotation
marks omitted). The term “personnel” refers to “the
selection, placement, and training of employees.” Id. at 569
(internal quotation marks omitted). And “personnel rules and
practices” means the agency’s “rules and practices dealing
with employee relations or human resources,” including
“such matters as hiring and firing, work rules and discipline,
compensation and benefits.” Id. at 570. Milner did not
define the word “related,” but following the Supreme Court’s
lead, we look to its dictionary definition, which is “connected
by reason of an established or discoverable relation.”
Related, Webster’s Third New International Dictionary 1916
(3d ed. 2002) (hereinafter Webster’s). Reading these
definitions together, Exemption 2 applies to internal rules and
practices exclusively connected with “the selection,
placement, and training of employees,” including “hiring and
firing.” Milner, 562 U.S. at 569–70.
Applying this definition, we conclude that the FAA’s
rules and practices for scoring tests relating to the selection of
employees, including its rules and practices regarding the
minimum passing score and the score for a particular test,
qualify under Exemption 2. It is undisputed that the FAA’s
rules and practices for scoring the Biographical Assessment
are internal and that the test is used solely as one step in the
process of selecting individual employees. Although Rojas
argues that we must construe Exemption 2 narrowly, see id.
at 571, Rojas fails to explain why the plain language of
Exemption 2 does not include internal practices for selecting
employees. Because Rojas has not raised a genuine issue of
material fact as to whether the minimum passing score and
ROJAS V. FAA 19
Rojas’s own score fall under the scope of Exemption 2, the
district court properly granted summary judgment to the FAA
on this issue.
We next turn to Rojas’s arguments that he was entitled to
his individual score and the minimum passing score under the
Privacy Act.
The Privacy Act allows individuals to obtain certain
records relating to themselves. Specifically, 5 U.S.C.
§ 552a(a)(4) defines the term “record” as “any item,
collection, or grouping of information about an individual
that is maintained by an agency, including, but not limited to,
his education, financial transactions, medical history, and
criminal or employment history and that contains his name,
or the identifying number, symbol, or other identifying
particular assigned to the individual, such as a finger or voice
print or a photograph.” And subsection (d) governs access to
such records, stating that agencies shall “upon request by any
individual to gain access to his record or to any information
pertaining to him which is contained in the system, permit
him . . . to review the record and have a copy made of all or
any portion thereof in a form comprehensible to him.
§ 552a(d)(1).
Exemption (k)(6), however, exempts from these access
provisions “testing or examination material used solely to
determine individual qualifications for appointment or
promotion in the Federal service the disclosure of which
would compromise the objectivity or fairness of the testing or
examination process.” 5 U.S.C. § 552a(k)(6). The parties do
not dispute whether the scores constitute “information about
an individual” that may be obtained under the Privacy Act.
Nor do they dispute that the Biographical Assessment
20 ROJAS V. FAA
constitutes “testing or examination material” that is used to
determine whether an applicant qualifies for the next step in
the selection process to become an air traffic controller.
Instead, Rojas argues that the minimum passing score for the
Biographical Assessment, and his own test score, do not
qualify for Exemption (k)(6) because they are not testing
material, but rather are the end product of the testing process.
We disagree. Assuming both scores may be requested
under the Privacy Act in the first instance, Exemption (k)(6)
exempts them from disclosure.5 The term “testing material”
refers to the items needed to conduct a test or examination to
determine an individual’s proficiency or knowledge. See
Testing, Webster’s 2362 (defining “testing” as “an act or
process of subjecting to test”); Test, id. (defining “test” as “a
technique for measuring objectively an individual’s personal
characteristics, potentialities, or accomplishments” or “an
examination to determine factual knowledge or mental
proficiency”); Material, id. at 1392 (defining “material” as an
“apparatus (as tools or other articles) necessary for doing or
making something”). Test scores are part of the material
necessary to evaluate an individual’s proficiency or
5 It is an open question whether a minimum passing score constitutes
“information about an individual” that is disclosable under the Privacy
Act. See 5 U.S.C. § 552a(a)(4) (defining a “record” as “information about
an individual that is maintained by an agency, including, but not limited
to, his education, financial transactions, medical history, and criminal or
employment history”) (emphasis added); id. § 552a(d)(1) (stating that
agencies shall “upon request by any individual to gain access to his record
or to any information pertaining to him which is contained in the system,
permit him . . . to review the record and have a copy made of all or any
portion thereof in a form comprehensible to him”) (emphasis added). We
need not address this issue, however, because even assuming the
minimum passing score constitutes “information about an individual,” it
is exempt from disclosure here.
ROJAS V. FAA 21
knowledge. We therefore conclude that test scores are part of
the “testing or examination material” used to determine
individual qualifications for purposes of Exemption (k)(6).
We must next consider whether disclosing the requested
scores would “compromise the objectivity or fairness of the
testing or examination process” that the FAA uses to evaluate
applicants. 5 U.S.C. § 552a(k)(6). The district court relied
on the FAA’s affidavit from Deputy Assistant Administrator
for Human Resources Rickie Cannon to conclude that a
release of the test scores would have such an effect. Rojas
argues that this was an error, because the affidavit submitted
by the FAA failed to explain how release of Rojas’s raw test
score could be used to cheat, and that the affidavit relied on
mere speculation that applicants would or could engage in a
cheating conspiracy.
We reject these arguments. The FAA’s detailed affidavit
provided evidence that prior applicants had worked together
to examine the correlation between their answers to the
Biographical Assessment and their passing or failing scores
in an effort to determine which answers were more likely to
be correct. The affidavit also asserted that the Biographical
Assessment’s scoring key could be determined based on a
large enough pool of applicant scoring information.
Although Rojas argues that his request is limited to his own
score, the FAA expresses the concern that other applicants
could rely on the same arguments to obtain their own scores
and asserts that the history of the cheating scandal here
indicates they would be likely to do so. Rojas did not offer
any evidence contradicting this affidavit, so the district court
did not err in accepting the FAA’s factual assertions.
Accordingly, Rojas has not raised a genuine dispute as to
whether applicants could use their test scores to undermine
22 ROJAS V. FAA
the integrity of the Biographical Assessment. Because such
a result would “compromise the objectivity or fairness of the
testing or examination process,” 5 U.S.C. § 552a(k)(6), we
affirm the district court’s grant of summary judgment to the
FAA based on Exemption (k)(6) of the Privacy Act, which
allowed the FAA to withhold from Rojas the minimum
passing score and his own score on the Biographical
Assessment.
B
Rojas next argues that the district court erred in ruling
that the FAA could redact the personal email addresses of
FAA employees that appeared in Snow’s emails because
those addresses were exempt from disclosure under FOIA
Exemption 6.
Exemption 6 provides that FOIA does not apply to
“personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of
personal privacy.” Id. § 552(b)(6). We employ a two-prong
inquiry to determine whether the government has correctly
withheld records under Exemption 6. First, we determine
“whether the information is contained in a personnel,
medical, or similar file.” Elec. Frontier Found., 639 F.3d
at 886 (internal quotation marks omitted). Second, we
determine “whether release of the information would
constitute a clearly unwarranted invasion of the person’s
privacy.” Id.
We begin by considering whether the redacted email
addresses here are contained in a “similar file.” As construed
by the Supreme Court, “similar file” applies broadly to
government records containing information “which can be
ROJAS V. FAA 23
identified as applying to that individual.” U.S. Dep’t of State
v. Wash. Post Co., 456 U.S. 595, 602 (1982) (internal
quotation marks omitted). Therefore, “[g]overnment records
containing information that applies to particular individuals
satisfy the threshold test of Exemption 6.” Van Bourg, Allen,
Weinberg & Roger ex rel. Carpet, Linoleum, & Soft Tile
Workers Union, Local 1288 v. N.L.R.B., 728 F.2d 1270, 1273
(9th Cir. 1984). Because “personnel and medical files” are
likely to contain information that is not intimate, “such as
place of birth, date of birth, date of marriage, employment
history, and comparable data,” the term “similar files” is
likewise not “limited to files containing intimate details and
highly personal information.” Wash. Post Co., 456 U.S.
at 600 (internal quotation marks omitted). In light of the
Supreme Court’s interpretation of “similar files,” we
conclude that government records containing personal email
addresses constitute “similar files,” because a personal email
address “can be identified as applying to [a particular]
individual.” See id. at 602 (internal quotation marks
omitted).
Second, we consider whether the disclosure of the
personal email addresses would amount to “a clearly
unwarranted invasion of that person’s privacy.” Id. A
privacy interest is cognizable under Exemption 6 if it is
“nontrivial,” that is, “more than . . . de minimis.” Yonemoto
v. Dep’t of Veterans Affairs, 686 F.3d 681, 693 (9th Cir.
2012) (alteration in original) (internal quotation marks
omitted), overruled on other grounds by ALDF, 836 F.3d at
989. This is not a demanding standard; rather, a disclosure
implicates a cognizable privacy interest if it affects either “the
individual’s control of information concerning his or her
person,” U.S. Dep’t of Justice v. Reporters Comm. for
Freedom of the Press, 489 U.S. 749, 763 (1989), or would
24 ROJAS V. FAA
possibly expose the individual to harassment, see Ray,
502 U.S. at 176–77. There is at least a “minor privacy
interest” in personal email addresses, Elec. Frontier Found.,
639 F.3d at 888, and we conclude that the FAA employees
have such an interest here.
If the agency establishes a nontrivial privacy interest, the
burden shifts to the requester to establish that the public
interest in the information outweighs the privacy interest. See
Cameranesi v. U.S. Dep’t of Def., 856 F.3d 626, 637 (9th Cir.
2017). “[T]he only relevant public interest in the FOIA
balancing analysis is the extent to which disclosure of the
information sought would shed light on an agency’s
performance of its statutory duties or otherwise let citizens
know what their government is up to.” Bibles v. Or. Nat.
Desert Ass’n, 519 U.S. 355, 355–56 (1997) (per curiam)
(alterations omitted). The information requested must
“appreciably further” the asserted public interest. U.S. Dep’t
of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 497
(1994). If the requestor fails to meet the burden of showing
that the public interest outweighs the privacy interest, then
“the invasion of privacy is unwarranted,” and Exemption 6
applies. Cameranesi, 856 F.3d at 637 (internal quotation
marks omitted) (quoting Nat’l Archives & Records Admin. v.
Favish, 541 U.S. 157, 172 (2004)).
When a requester asserts only the public interest in
demonstrating “that responsible officials acted negligently or
otherwise improperly in the performance of their duties,”
Tuffly v. U.S. Dep’t of Homeland Sec., 870 F.3d 1086, 1095
(9th Cir. 2017) (internal quotation marks omitted) (quoting
Favish, 541 U.S. at 174), “the requester must establish more
than a bare suspicion” that the officials behaved improperly,
Favish, 541 U.S. at 174. The evidence must “warrant a belief
ROJAS V. FAA 25
by a reasonable person that the alleged Government
impropriety might have occurred”; otherwise, there is no
“counterweight on the FOIA scale for the court to balance
against the cognizable privacy interests in the requested
records.” Id. at 174–75.
We have also recognized that “[t]here is a clear public
interest in public knowledge of the methods through which
well-connected corporate lobbyists wield their influence.”
Elec. Frontier Found., 639 F.3d at 887. This is an example
of “[o]fficial information that sheds light on an agency’s
performance of its statutory duties,” id. (alteration in original)
(quoting Reporters Comm., 489 U.S. at 773), because “[w]ith
knowledge of the lobbyists’ identities, the public will be able
to determine how the Executive Branch used advice from
particular individuals and corporations in reaching its own
policy decisions,” id. at 888. Due to the strong public interest
in knowing the identities of lobbyists, we noted that
disclosure of “a particular email address” would be allowed
if such disclosure “is the only way to identify” the person
lobbying an agency regarding its public business. Id. In that
circumstance, the privacy interest in that email address may
not counterbalance the public’s “robust interest” in knowing
who is “seeking to influence” an agency. Id. at 888–89.
Here, because the FAA has established a nontrivial
privacy interest in its employees’ email addresses, the burden
shifts to Rojas to establish that the public interest in the
information outweighs the privacy interest. Rojas argues that
there is a substantial public interest in evaluating whether
FAA officials intentionally acted in a manner that
compromised the fairness of the hiring process for air traffic
controllers. Without the addresses, Rojas asserts, it is
impossible to determine which employees were involved in
26 ROJAS V. FAA
the alleged conspiracy to help certain applicants or to
understand the information flow regarding the alleged
conspiracy within the agency. Further, Rojas argues that
government employees have diminished privacy interests
where the information sought may disclose misconduct.
Although this issue is quite close, FOIA’s “strong
presumption in favor of disclosure,” Ray, 502 U.S. at 173,
leads us to conclude that where FAA employees used
personal email addresses to receive information relating to
the FAA’s change in selecting air traffic controllers, Rojas
has carried his burden of showing that the FAA employees’
privacy interest in their personal email addresses is
outweighed by the “robust interest of citizens’ right to know
‘what their government is up to’” in making the changes it
did. Elec. Frontier Found., 639 F.3d at 888 (quoting
Reporters Comm., 489 U.S. at 773). There is a clear public
interest in assessing FAA employees’ use of information
relating to the FAA’s selection of air traffic controllers.
Further, in this case, providing the “particular email address”
receiving the information from the FAA email account “is the
only way to identify” the FAA employees involved in
discussing these issues.
Because the email in which Snow forwarded the Barrier
Analysis to personal email accounts relates to the FAA’s
change in hiring practices, we conclude that the public
interest in identifying the individuals receiving this
information outweighs the privacy interests of those
individuals. However, the email that requests employees to
refer calls from the reporter who authored “Trouble in the
Skies” to FAA Public Affairs does not relate to the FAA’s
change in selecting air traffic controllers. Therefore, the
privacy interests of the individuals receiving this information
ROJAS V. FAA 27
are not outweighed by the public interest in what the FAA
was “up to” when it changed its hiring practices.
Moreover, although Rojas is required to show more than
a “bare suspicion in order to obtain disclosure,” he has
overcome that hurdle to the extent he asserts the public’s
interest of shedding light on potential official misconduct.
Favish, 541 U.S. at 174. Based on the evidence provided, a
reasonable person would believe that “the alleged
Government impropriety might have occurred” in the FAA’s
decision to change its hiring practices. Id.; see also Union
Leader Corp. v. U.S. Dep’t of Homeland Sec., 749 F.3d 45,
56 (1st Cir. 2014) (noting that evidence of misconduct was
“hardly conclusive evidence of negligence, or other
wrongdoing,” but was enough to satisfy the standard set out
in Favish). Because Rojas has overcome “the presumption of
legitimacy accorded to official conduct,” Cameranesi,
856 F.3d at 640, we conclude there is no genuine issue of
material fact that Exemption 6 does not apply to the personal
email addresses of the recipients of the Barrier Analysis
document containing FAA information relating to the
selection of air traffic controllers. That said, the public’s
interest is limited to learning their identity. Therefore, the
FAA could satisfy its obligation under FOIA by identifying
the email recipients by name, instead of revealing the
recipients’ personal email addresses.
C
We next turn to the question whether the 202 emails
withheld by the FAA were “agency records” subject to
FOIA’s disclosure requirements. If the emails are not
“agency records,” the district court lacked authority to
compel their disclosure. See Tax Analysts, 492 U.S. at 142.
28 ROJAS V. FAA
The agency bears the burden of showing that the materials
sought are not “agency records.” Id. at 142 n.3.
Congress “did not provide any definition of ‘agency
records’ in [FOIA].” Forsham v. Harris, 445 U.S. 169, 178
(1980).6 The Supreme Court has provided a two-prong test:
a document is an agency record if (1) the agency “either
create[d] or obtain[ed] the requested materials,” and (2) the
agency is “in control of the requested materials at the time the
FOIA request is made.” Tax Analysts, 492 U.S. at 144–45
(internal quotation marks omitted).
The withheld emails at issue here were either sent to or
received by Snow, an FAA employee, using his official FAA
email account, and were maintained in the FAA’s computer
servers. The parties do not dispute that these emails were
created or obtained by the FAA.7 Consequently, the first
prong of the Tax Analysts test is satisfied. See id. at 144.
6 FOIA does, however, define the term “record” as “any information”
that is “maintained by an agency in any format, including an electronic
format,” as well as any such information “maintained for an agency by an
entity under Government contract, for the purposes of records
management.” 5 U.S.C. § 552(f)(2)(A)–(B).
7 On appeal, the FAA did not address the issue whether an agency
“create[s] or obtain[s]” emails under these circumstances. Instead, it
focused its argument on whether the withheld emails “[came] into the
agency’s possession in the legitimate conduct of its official duties” or
included “personal materials in an employee’s possession,” which are
factors considered in determining whether an agency is “in control of the
requested materials at the time the FOIA request is made.” Tax Analysts,
492 U.S. at 144–45.
ROJAS V. FAA 29
We therefore turn to the second prong, whether an agency
is in “control” of the requested documents. Rojas argues that
this prong is satisfied because all the withheld emails exist on
the FAA’s servers and were generated while Snow was an
FAA employee. In Rojas’s view, the FAA’s possession of
the emails in its servers is sufficient to show that FAA has
control of the emails. We reject a categorical rule that any
document created by an agency employee and stored on an
agency server is in the agency’s control. Rather, the question
whether an agency is in “control” of requested documents
requires a more complex analysis.
In Tax Analysts, the Court determined that copies of
judicial opinions and orders kept in official files for use by
Department of Justice (DOJ) staff attorneys were controlled
by DOJ because the agency obtained the opinions and
maintained them in official case files. Id. at 146–47. In
reaching this conclusion, Tax Analysts provided guidance on
what constitutes “control” for purposes of FOIA.
First, the agency must be “in control of the requested
materials at the time the FOIA request is made.” Id. at 145.
In this context, “control” means “in the agency’s possession,”
id. at 146, although the Court held open the possibility that an
agency might “control” documents that had been
“purposefully routed” to another agency in order to avoid a
FOIA request, id. at 146 n.6. Tax Analysts rejected
arguments that an agency lacked “control”’ if it lacked
authority to modify the document, stating that the “control
inquiry focuses on an agency’s possession of the requested
materials, not on its power to alter the content of the materials
it receives.” Id. at 147. It also held that the purpose for
which a record is created is not relevant to whether it is
controlled by the agency; the definition of “agency records”
30 ROJAS V. FAA
may not turn “on the intent of the creator” because “[s]uch a
mens rea requirement is nowhere to be found in the Act.” Id.
To the extent this first factor in the control prong of Tax
Analysts focuses solely on the agency’s possession of a
document, it resembles Rojas’s proposed rule.
But Tax Analysts did not define the term “control” merely
as “possession.” It also defined “control” to mean “that the
materials have come into the agency’s possession in the
legitimate conduct of its official duties,” or “in connection
with the transaction of public business.” Id. at 145 (emphasis
omitted). This aspect of “control,” the Court explained,
accords with the holding from its prior opinion in Kissinger
v. Reporters Committee for Freedom of the Press that “the
term ‘agency records’ is not so broad as to include personal
materials in an employee’s possession, even though the
materials may be physically located at the agency.” Id.
Kissinger considered whether the notes that Henry Kissinger
made while serving in the Office of the President (which is
not an “agency” under FOIA) became “agency records” when
Kissinger physically brought them to the State Department
(which is an “agency” under FOIA) when he became
Secretary of State. See 445 U.S. at 155–57. Because “[t]he
papers were not in the control of the State Department at any
time,” were not “generated in the State Department,” “never
entered the State Department’s files, and they were not used
by the Department for any purpose,” the Court held they were
not agency records. Id. at 157.
Relying primarily on Kissinger, the D.C. Circuit adopted
a four-factor test for determining whether a document is in
the control of an agency in connection with its official
business. Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d
208, 218 (D.C. Cir. 2013). The first factor is “the intent of
ROJAS V. FAA 31
the document’s creator to retain or relinquish control over the
records”; the second factor is “the ability of the agency to use
and dispose of the record as it sees fit”; the third factor is “the
extent to which agency personnel have read or relied upon the
document”; and the fourth factor is “the degree to which the
document was integrated into the agency’s record system or
files.” Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d 1060,
1069 (D.C. Cir. 1988), aff’d, 492 U.S. 136 (1989) (internal
quotation marks omitted). Although the FAA asks us to
adopt this test and use it to determine whether the emails at
issue are agency records, we cannot fully embrace it. First,
it was originally developed before the Supreme Court’s
decision in Tax Analysts, see id., and its first factor is in
tension with the Court’s conclusion that “the intent of the
creator of a document” is not relevant to a determination of
whether the document is an agency record, Tax Analysts,
492 U.S. at 147. Second, some of the D.C. Circuit’s factors
are less helpful when applied to emails and other electronic
records, as opposed to physical records more common when
the factors were developed. For instance, whether an email
is “integrated” into the agency’s record system or files is less
meaningful today because email and other electronic records
may be automatically stored on an agency’s server, and not
“filed” in a record system in any formal way.
Rather than adopting the D.C. Circuit’s four-factor test,
we hold that a court may consider a range of evidence to
determine whether specified records are in the agency’s
possession in connection with agency-related business, or
instead involve personal matters not related to the agency’s
“transaction of public business.” See id. at 145 (emphasis
omitted). As suggested by the D.C. Circuit, evidence relating
to the agency’s use of documents (including its system for
preserving, retrieving, or disposing of the documents, and any
32 ROJAS V. FAA
reliance on the documents by agency employees) may be
relevant to this inquiry. Agency records are not limited to
documents that are preserved according to agency directions,
however. Given that the term “record” includes electronic
records, 5 U.S.C. § 552(f)(2), emails sent or received for
agency-related business may be agency records, even if not
stored in agency files in any formal sense. By contrast,
emails or other documents that are unrelated to agency
business are not agency records, even if they are stored on the
agency’s server and used by an agency employee. See
Kissinger, 445 U.S. at 155–56. Moreover, because there is no
mens rea requirement for whether materials constitute agency
records, Tax Analysts, 492 U.S. at 147, agency records may
include documents used by agency employees in connection
with agency business, even if the employees were engaging
in misconduct, cf. Restatement (Second) of Agency § 229
(1958) (listing factors to consider when determining whether
an unauthorized action is nevertheless within the scope of an
agent’s duties).
Applying the second prong of Tax Analysts (whether the
agency is in control of the withheld materials at the time the
FOIA request is made) to the facts of this case, we have no
trouble concluding that the FAA possessed the withheld
materials, because they were discovered in the FAA’s
computer system. See 492 U.S. at 144. But it is less clear
whether the FAA possessed any of the documents in the
conduct of its official duties or public business. Our
independent review suggests that some of the withheld
documents were not purely personal. For instance, because
the FAA’s official business includes selecting and hiring air
traffic controllers, the withheld email relating to study
information for the FAA’s examination of applicants, may be
in the FAA’s possession in connection with the transaction of
ROJAS V. FAA 33
public business. See id. at 145. Nor is it clear that documents
containing communications between an FAA employee and
the NBCFAE (an association of FAA employees), or the
National Air Traffic Controllers Association, are merely
personal. If the FAA communicates or works with the
NBCFAE or the NATCA in the conduct of its official duties
or public business, for instance, then such communications
could be in the FAA’s “control” as defined in Tax Analysts.
See id. For example, should the FAA jointly sponsor
programs or engage in bargaining with these organizations,
communications regarding such matters may relate to public
business.
The district court provided little explanation of its grant
of summary judgment in favor of the FAA on this issue,
stating only that the withheld documents were “personal
emails regarding Snow that do not respond to Rojas’s FOIA
requests or the mission of the FAA.” Without more
explanation, we cannot tell whether the district court
appropriately considered the factors we set out today.
Because in FOIA cases, a district court must provide
sufficiently detailed disclosure of the factual and legal basis
for its decision, see Van Bourg, Allen, Weinberg & Roger v.
NLRB, 656 F.2d 1356, 1358 (9th Cir. 1981) (per curiam);
Couveau v. Am. Airlines, Inc., 218 F.3d 1078, 1081 n.3 (9th
Cir. 2000) (per curiam), we think it prudent to remand to the
district court to address this issue under the appropriate
standards in the first instance. We therefore vacate the
district court’s order granting summary judgment with respect
34 ROJAS V. FAA
to the 202 withheld emails and remand to the district court to
apply Tax Analysts’s second prong consistent with this
opinion.8 See Van Bourg, 656 F.2d at 1358.
* * *
8 The parties shall bear their own costs on appeal.
Outcome: AFFIRMED IN PART, REVERSED IN PART, AND
VACATED AND REMANDED IN PART.
Plaintiff's Experts:
Defendant's Experts:
Comments: