“From tragedy we draw knowledge to protect the safety of us all.”[1]

When an aviation accident or a significant highway, marine, railroad, pipeline, or hazardous-materials accident occurs, the National Transportation Safety Board (“NTSB”) springs into action.  See, 49 U.S.C. § 1131 (listing types of accidents within the NTSB’s jurisdiction). The NTSB investigates the accident’s causes, publicly reports its findings, and makes safety recommendations.  See, 49 U.S.C. § 1131(a)(1) & (e).  Over the years, “the NTSB has earned the public’s trust and confidence in ways that few other government agencies can match.”  Eric Fielding, Andrew W. Lo, and Jian Helen Yang, The National Transportation Safety Board: A Model for Systemic Risk Management 2 (November 18, 2010 draft). [2]

The NTSB regularly includes in their investigations technical personnel from the companies whose vehicle or component parts were involved in the accident under investigation.  Are discussions between such “parties” to the investigation and the NTSB protected by the Freedom of Information Act’s (FOIA) deliberative process privilege?  In part, the answer turns on the scope of FOIA Exemption 5’s “consultant’s corollary.”   Recently, in Jobe v. National Transportation Safety Board, — F.3d —- (2021), the Fifth Circuit held that such consultations do indeed fall within the protections accorded consultants’ communications with government personnel.[3]

I. The National Transportation Board and its Party Process

The NTSB enjoys an extraordinary reputation for accident investigation.  However, it lacks any regulatory powers; it can merely make safety recommendations.[4]  Moreover, though the NTSB makes findings regarding the cause of accidents, the Board’s organic statute provides that its reports shall play no role in the adjudication of personal injury suits against carriers and manufacturers.  49 U.S.C. § 1154(b).

At the heart of its investigatory process is the party system for investigating accidents.  Fielding, supra, at 6-8.  The NTSB’s “Investigator in Charge,” 49 C.F.R. § 831.8, may designate any entity “whose employees, functions, activities, or products were involved in the accident . . . and who can provide suitable qualified technical personnel” to play an active role in the investigation. Such entities are formally denominated as “parties” to the investigation. Id. § 831.11(a)(1). Parties are under the NTSB’s direct supervision. Id. §§ 831.8(b); 831.11(a)(2). Representatives of non-U.S.-Government parties must sign a “Statement of Party Representatives to NTSB Investigation,” id. § 831.11(b), which, among other things, includes a commitment that they will not “prepare for litigation or pursue other self-interests” in their roles as parties to the investigation.[5]

This apparently collaborative process provides the NTSB with access to expertise and technical knowledge of the vehicle and components involved.  Fielding, supra, at 6-8.  Most parties participate willingly.  By doing so they gain privileged and timely access to information from the ongoing investigation. Participation also gives “parties” an opportunity to provide the NSTB investigators additional information that may influence the investigation’s course.  Id. (For these reasons, plaintiffs’ attorneys, representing accident victims, complain that the party process gives defendant manufacturers and carries an unfair litigation advantage.  Id. at 7, n.6.)  After the fact-gathering portion of the investigation concludes, parties may submit their analyses to the NTSB for consideration.  Id. at 6-8.  The submissions are noted in a public docket item that displays the offerings made by the parties.  Id.  Otherwise, parties cannot participate or be involved in the NTSB’s formal analysis, which is conducted by NTSB personnel and disclosed only at an NTSB board meeting regarding the accident.  Id.

II. The Consultant’s Corollary

FOIA Exemption 5 protects “inter-agency or intraagency memorandums or letters which 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). Within a few years of FOIA’s enactment, courts began to consider whether an agency’s communications with non-governmental consultants could qualify as an “inter-agency or intraagency” communications.  Early on, the D.C. Circuit and the Fifth Circuit held that communications between an agency and its private consultants could be protected by Exemption 5.  Hoover v. U.S. Dep’t of the Interior, 611 F.2d 1132, 1137–38 (5th Cir. 1980); Wu v. National Endowment for Humanities, 460 F.2d 1030, 1032 (5th Cir. 1972); Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971).  Other Circuits followed suit.  E.g., Lead Industries Assn. v. OSHA, 610 F.2d 70, 83 (2d Cir. 1979); see also, Department of Justice v. Julian, 486 U.S. 1, (1988)(Scalia, J., dissenting) 

In Department of the Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001), the Supreme Court expressed skepticism about the validity of the “consultant’s corollary,”[6] id, at 9, suggesting that conflicted with FOIA’s text, but left the Circuit precedent largely undisturbed.  However, the Klamath Court noted “one constant” about the consultants whose communications were covered by the “consultant’s corollary”— none “represent[d] an interest of [their] own, or the interest of any other client” when advising the agency. Uniformly, the consultants’ “only obligations [were] to truth and the consultant’s sense of what good judgment calls for,” and thus they “functioned just as an employee would be expected to do.”  Id. at 10-11. 

That limitation on the consultant corollary proved sufficient to resolve the case at hand.  The Klamath Court rejected the Department of Interior’s attempt to shield communications between itself and several Indian tribes[7] regarding two matters: (1) a planning effort within the Department of the Interior’s Bureau of Reclamation, and (2) a state water rights adjudication in the Oregon courts. Id. at 5.  In those instances the tribe had “necessarily communicate[d] with the Bureau with their own, albeit entirely legitimate, interests in mind” thus distinguishing them from the kinds of consultants devoted solely to the government’s interests and who essentially function as agency employees.  Id. at 12.

In the course of its decision, the Court also made the following enigmatic observations regarding the consultants the Circuits had, at that time, found to fall within the consultant’s corollary.  “To be sure, the consultants in these cases were independent contractors and were not assumed to be subject to the degree of control that agency employment could have entailed; nor do we read the cases as necessarily assuming that an outside consultant must be devoid of a definite point of view when the agency contracts for its services.”  Id. at 10.

After Klamath, courts have continued to apply the consultants’ privilege, and the Klamath Court’s limitation on the scope of that privilege.[8]  However, a Sixth Circuit panel expressed doubt about its validity, Lucaj v. Federal Bureau of Investigation, 852 F.3d 541 (6th Cir. 2017),[9] and a Ninth Circuit panel’s refusal to recognize the consultant’s corollary produced a rousing debate among the members of an en banc panel.  Rojas v. FAA, 927 F.3d 1046 (9th Cir. 2019).

III. Jobe v. National Transportation Safety Board

In 2011, a helicopter operated by Blue Hawaiian Helicopters crashed during a sightseeing tour, killing all on board.  Jobe, supra, slip op, at 5.  Eurocopter and Turbomeca, French companies, had manufactured the craft and its engine respectively. Id.  Not surprisingly, the NTSB investigator-in-charge designed both companies, in addition to Blue Hawaiian and the Federal Aviation Administration, as parties to the investigation.  Slip op. at 4-5.[10]  After the NTSB completed its investigation, Tony Jobe, a lawyer representing the crash victims’ families, submitted two successive information request to the NTSB, one general and one seeking eleven specific categories of documents relating to the on-scene phase of the investigation.  Slip op. at 5-6. The NTSB withheld 215 pages of documents sent between itself, Blue Hawaiian, Eurocopter, and Turbomeca pursuant to the deliberative process privilege, in reliance upon the “consultant’s corollary.” Slip op. at 6.

The District Court concluded that the private companies were self-interested, and thus Klamath precluded considering them consultants for purposes of the consultant’s corollary.  The court observed that the companies “were also undoubtedly [involved in the NTSB investigation] to collect information to prepare for inevitable future litigation.” See, slip op. at 8.  And their participation conferred a “significant benefit” on the companies: by according them “access to the ‘investigation file’ and ‘editorial license’ over the agency’s factual reports and ultimate probable cause determination,” which the families of the crash victims lacked. See, id.  The District Court rejected the assertion of the privilege and ordered the NTSB to produce the documents.  See, id.

The appellate panel divided over whether the NTSB’s communications with consulting parties could fall within the term “intraagency memorandum” in Exemption 5.  The majority concluded that Klamath’s language regarding consultants lacking self-interest was not dispositive, and distinguished the relationship between the NTSB and parties to NTSB investigations from that between the Department of Interior and the tribes in Klamath.  Slip op. at 11-14.  It did so largely based on the degree of control the NTSB exercised over its investigations and their non-adversarial nature.  The dissenting judge found the self-interest test dispositive, and explained that the business interests’ representatives participating in the investigation clearly had a disqualifying self-interest in the outcome of the investigation.  Slip op. at 18-21 (Ho, J., dissenting).

The majority devoted some time to laying out the statutory provisions and regulations governing the NSTB’s relationship with parties to its investigations. Slip op. at 3-4. Relying heavily on those provisions, the majority distinguished Klamath.

First, unlike the tribes in Klamath, Blue Hawaiian, Eurocopter, and Turbomeca were not making “claims” “necessarily adverse” to those of the crash victims’ families.  Slip op. at 12-13.[11]  Rather, their employees were participating in an investigation that was not directed at determining any person’s rights or liabilities. 49 C.F.R. § 831.4.  In Klamath, the Tribes had been lobbying the agency during a planning project to obtain their desired share of a river basin’s resources, in zero-sum competition with other water-users. Slip op. at 13.[12]

Moreover, it observed, “all parties to NTSB investigations—including foreign companies—are under the control of the agency-appointed investigator in charge.” Slip op. at 13 (citing 49 C.F.R. §§ 831.8; 831.11(a)(2)).  Such control includes limiting parties’ ability to disclose, even within their own organizations, information obtained during an investigation.  Id.  In Klamath, by contrast, nothing suggested that the Department supervised the tribes, circumscribed their role in the planning process, or limited their ability to use information they obtained to further their own claims.  Slip op. at 14.

With respect to the District Court’s concern that neither the Blue Hawaiian crash investigation nor the typical NTSB investigation includes representatives of victims’ families, the majority recognized that the concern reflected a “commendable sympathy for these families.”  Id.  But, in its view, that concern was ultimately “misplaced.”  Id.  It explained that the NTSB does not invite victims’ representatives to participate in investigations because they typically cannot lend technical expertise to the investigation.[13]  In short, “[t]he exclusion of victims’ family members from investigations . . . has no bearing on whether outside entities with whom the agency does communicate are “akin to … agency employee[s].”  Slip op. at 16 (quoting Stewart v. U.S. Dep’t of the Interior, 554 F.3d 1236, 1245 (10th Cir. 2009).

The majority expressly noted that even though communications with parties qualified as intra-agency communications, they must also meet the requirements of the particular Exemption 5 privilege being asserted.  Slip op. at 16-17.

Judge Ho essentially began his dissent with a simple and bold assertion: “If the terms ‘inter-agency’ and ‘intra-agency’ exclude anything, I would think they exclude government communications with employees of the very entity the government is trying to regulate.”  Slip op. at 18.  In his view, “[a] communication between the regulator and the regulated—between parties with conflicting public versus private interests—is the very opposite of an internal government communication.” Id.

Reading Klamath as establishing a rule that a party who has an interest in the advice it gives the government cannot be considered a consultant for purposes of the consultant’s corollary, he noted that the French companies possessed such a disqualifying interest. Slip op. at 19.  For example, he observed, “the companies had an interest in steering the NTSB away from making any statements or reaching any conclusions that might support” current or potential adversaries in litigation, such as “the families of the crash victims represented by Jobe.”  Id.

And even though the NTSB lacks regulatory authority, a point featured prominently in the majority opinion, “the whole purpose of [the NTSB’s] work is to help regulators like the FAA determine how best to regulate companies to ensure public safety.”  Slip op. at 20.  Because “the NTSB’s findings can have a meaningful impact on the companies,” they have “a genuine interest in the content of the agency’s findings.”  Id.

And indeed, he observed, the very constraints on party representatives featured so heavily in the majority’s opinion merely proved his point — that those parties had a self-interest in the result of the investigation.  Id.  “Those regulations and restrictions are necessary precisely because these employees remain on the payroll of the regulated companies and expect to return to their employers when their secondments are completed.”  Id.  Indeed, he asserted, “[i]t would be pure fiction for a government agency like the NTSB to expect these designated private employees to ignore their sense of loyalty and duty to their employers.”  Id.

He acknowledged the NTSB’s policy argument— thatprotecting the confidentiality of communications between parties to the investigation and the NTSB “would help maximize the quantity and quality of the information available to the agency” regarding safety incidents.  Slip op. at 21.  However, he responded, such “a policy decision [is one] for Congress to make.”  Id.

IV. Observations

The Fifth Circuit may give en banc consideration to the panel opinion.  If the decision stands, a Circuit split will likely quickly develop. Because cases resulting from FOIA requests to the NTSB for accident investigation records are tied neither to the location of the accident being investigated nor the location of NTSB headquarters, 5 U.S.C. § 552(a)(4)(B), plaintiff-side aviation accident attorneys may largely have their choice of Circuits in which to initiate a FOIA action.  And several of those Circuits are likely to take a far less expansive view of the “consultant’s corollary” than that reflected in Jobe. The Sixth Circuit has already expressed skepticism about whether such a privilege exists at all, and there is a reasonable prospect that both the Second Circuit and the D.C. Circuit will view the case with a more pro-transparency lens.  And the breadth of the Jobe Court’s conception of the consultants’ corollary may well give ammunition to those who argue for quashing the consultant’s corollary jurisprudence altogether — as lacking a firm textual basis and as potentially quite expansive and difficult to consistently apply.

Second, in the treatment of consultants, FOIA jurisprudence contains an irony.  When an agency completely turns over required investigation and analysis to a private consultant, and permits the private entity to retain and maintain the raw results, the material will be shielded from FOIA requesters because of the restriction on the definition of “agency records”.  See, Forsham v. Harris, 445 U.S. 169 (1980); see generally, U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144–45 (1989)(defining “agency records” as only those a federal agency (1) “create[d] or obtain[ed]” and (2) “control[s]” at the time of a FOIA request.”); Rocky Mountain Wild v. U.S. Forest Service: Applying Forsham v. Harris in the NEPA Context, YALE J. ON REG.: NOTICE & COMMENT (March 11, 2018).  Yet if the Government decides not to outsource the investigative and analytical process, the consultants may well have no protection for opinions and analysis offered the agency.  Thus FOIA incentivizes agencies to outsource certain responsibilities.

Third, the treatment of consultations with consultants may be one of those issues for which a one-size fits all rule (or approach) is flawed.  There may be strong public policy reasons to shield certain conversations between private consultants and the government from access via FOIA. 

For example, when the government serves as a fiduciary for Indian tribes, those tribes’ communications regarding their position on certain matters should not be subject to public disclosure.  In such a case frankness is critical, and there are processes regarding government decisions on those matters that are public.  In short, should confidential discussions between the government and tribes regarding the position of each in state court litigation be precluded?[14] 

Similarly, NTSB’s party process appears to be working well and is arguably an integral part of the process of an agency that has an exceptional reputation for accident investigation inside and outside of government circles. Indeed, in many ways the desire to protect such a salutary process was really at the core of the majority’s argument in Jobe.  The policy arguments for shielding such conversations is similar to the arguments for recognizing a privilege of self-critical analysis;[15] the party process is in a sense a collective self-critical analysis by regulators and regulated entities led by the NTSB.  Indeed, the collective process itself may encourage regulators’ and private entities’ acceptance of the NTSB’s recommendations.  See generally, Sierra Club v. Costle, 657 F.2d 298, 401 & n. 504 (D.C.Cir. 1981).[16] 

Moreover, to the extent the informal communications involve the factual circumstances surrounding the accident, rather than creative thinking about the causes of the accident or potential forward-looking safety proposals, the deliberative process privilege may well be inapplicable.  The material withheld pursuant to that privilege must be “deliberative.” Generally this is viewed as material that would expose the opinions, advice, or recommendations offered in the course of agency decision-making, and not factual material. See, e.g., EPA v. Mink, 410 U.S. 73, 91 (1973); Coastal States Gas Corp. v. DOE, 617 F.2d 854, 867 (D.C. Cir. 1980); see generally, Department of Justice Guide to the Freedom of Information Act, Exemption 5, supra, at 27-56.[17]  Granted, at times the distinction can be difficult to make, and Circuits differ on how to do so, nevertheless much of the factual material uncovered by investigators would be accessible to private litigant.  

However, transparency advocates justifiably become nervous when exceptions to FOIA are discussed in the context of writing special agency-specific rules.  Such rules often originate from congressional committees focused on particular agencies, not the committees that consider FOIA and government transparency more broadly.

But perhaps such agency-focused legislation is preferable to maintaining a situation in which judges conclude that they must expand the consultant’s corollary so that FOIA’s transparency obligations do not undermine critical aspects of particular agencies’ functioning.

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[1] This statement is etched upon the entry doors of the NTSB’s training facility in Virginia. Robert Sumwalt, Reflecting Back On 10 Years As A Board Member, NTSB SAFETY COMPASS.  

[2] Since its inception, the NTSB has investigated over 132,000 aviation accidents and thousands of surface transportation accidents.  As of 2010, the NTSB has issued over 12,900 safety recommendations to more than 2,500 recipients.  Fielding et al., supra, at 35.    

[3] Department of Justice Guide to the Freedom of Information Act, Exemption 5, 4-10  (posted August 26, 2019).

[4] Fielding et al., supra, at 2.  The government agencies that regulate relevant modes of transportation include: (1) the Federal Aviation Administration (aircraft), (2) the National Highway Traffic Safety Administration (motor vehicles), (3) the Federal Motor Carrier Safety Administration (trucks and buses), (4) the United States Coast Guard (marine transportation), and (5) the Pipeline and Hazardous Materials Safety Administration (pipelines and hazardous materials). Id.

[5] 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).

[6] The Court noted that “neither the terms of the exemption nor the statutory definitions say anything about communications with outsiders” Klamath, supra, 532 U.S. at 9.

[7] I use the terminology adopted by the Court.

[8] See Department of Justice Guide to the Freedom of Information Act, Exemption 5, supra, at 6-9.

[9] In Lucaj, the Sixth Circuit held that even federal agency communications with officials of foreign governments could not qualify as “inter-agency or intragency” memoranda and letters.

[10] Technically, the French companies were designated by the French Government’s Bureau of Enquiry and Analysis for Civil Aviation Safety pursuant to the Convention on International Civil Aviation.  Slip op. at 4-6.

[11] Accord, Electronic Privacy Information Center v. DHS, 892 F. Supp. 2d 28, 46 (D.C. Cir. 2011)(“[s]elf-advocacy is not a dispositive characteristic and does not control Exemption 5’s scope” in all cases, particularly when the self-interest is not “necessarily adverse to the government”).  In EPIC, the court did not even find the consultant’s attempt to get the government to choose it over other companies providing the same services sufficient to push the company outside the protection of the consultant’s privilege, because any such interest was not adverse to the Government’s interests.  Id. at 46.  See, Physicians Committee for Responsible Medicine v. NIH, 326 F. Supp. 2d 19, 29-30 (D.D.C. 2004); Lardner v. DOJ, Dkt. No. 03-0180, 2005 WL 758267, at *15 (D.D.C. Mar. 31, 2005).

[12] This is reminiscent of the line the D.C. Circuit drew regarding the permissibility of ex parte contacts in Action for Children’s Television v. FCC, 564 F.2d 458 (1977)(limiting Home Box Office, Inc. v. FCC, 567 F.2d 9 (1977), cert. denied, 434 U.S. 829 (1977)).  There the Court said: “In light of what must be presumed to be Congress’ intent not to prohibit or require disclosure of all ex parte contacts during or after the public comment stage, . . ., we would draw that line at the point where the rulemaking proceedings involve “competing claims to a valuable privilege.” Id. at 477)(quoting Home Box Office, supra, 567 F.2d at 61 (MacKinnon, J., concurring)( (emphasis added).

[13] Such disparate treatment of regulated entities and regulatory beneficiaries reflects a broader issue, namely that informational asymmetries will favor regulated entities because agencies must rely on their knowledge and expertise to craft their approaches and then defend them on judicial review.  See generally, Wendy E. Wagner, Administrative Law, Filter Failure, And Information Capture, 59 DUKE L.J. 1321 (2010).   Indeed, this imperative may contribute to the phenomenon of “agency capture,” see generally, Richard Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1669, 1685-86 (1975).

[14] The Fourth Circuit has recognized a common-interest privilege applicable through Exemption 5, that protects communications between the government and other private parties jointly conducting litigation.  Hunton & Williams v. DOJ, 590 F.3d 272, 288 (4th Cir. 2010); see generally, Department of Justice Guide to the Freedom of Information Act, Exemption 5, supra, at 12-14.

[15] Recognition of a privilege of self-critical analysis is a matter of open debate, which some federal courts recognizing such a privilege and others refusing to do so.  See, generally, 23A CHARLES A. WRIGHT & ARTHUR R. MILLER, FED. PRAC. & PROC. EVID. § 5431 (1st ed.)(available on westlaw)(discussing the privilege of self-evaluative reports and the conflicting caselaw regarding the critical self-analysis privilege); Kelly J. Bundy, The Self-Critical Analysis Privilege: Under Construction or Built on Shaky Ground? (May 12, 2019).

[16] The Costle Court observed: “Informal contacts may enable the agency to win needed support for its program, reduce future enforcement requirements by helping those regulated to anticipate and shape their plans for the future, and spur the provision of information which the agency needs.”  657 F.2d at 401.

[17] 3 Wolfe v. HHS, 839 F.2d 768, 774 (D.C. Cir. 1988) (en banc); Mapother v. DOJ, 3 F.3d 1533 (D.C. Cir. 1993)(distinguishing Playboy Enterprises v. DOJ, 677 F.2d 931, 936 (D.C. Cir. 1982). Trentadue v. Integrity Committee, 501 F.3d 1215, 1229 (10th Cir. 2007)(rejecting Mapother).  See Petroleum Info. Corp. v. Dep’t of Interior, 976 F.2d at 1438 (discussing “technical, objective tenor” of withheld materials).