and Submitted March 6, 2019 Phoenix, Arizona
from the United States District Court for the District of
Arizona Stephen M. McNamee, District Judge, Presiding D.C.
Michael W. Pearson (argued), Curry Pearson & Wooten PLC,
Phoenix, Arizona, for Plaintiff-Appellant.
A. Bullis (argued), Assistant United States Attorney; Krissa
M. Lanham, Deputy Appellate Chief; Elizabeth A. Strange,
First Assistant United States Attorney; United States
Attorney's Office, Phoenix, Arizona; for
Before: Richard R. Clifton, Sandra S. Ikuta, and Michelle T.
Friedland, Circuit Judges.
of Information Act/Privacy Act
panel affirmed in part, reversed in part, and vacated in part
the district court's summary judgment in favor of the
Federal Aviation Administration in a lawsuit brought by Jorge
Rojas, an applicant for an air traffic control position,
alleging that the Administration violated the Freedom of
Information Act and the Privacy Act by failing to produce
response documents related to the Biographical Assessment, a
screening tool introduced by the Administration in 2014 as
part of the air traffic controller hiring process.
that the Federal Aviation Administration was engaging in
discriminatory hiring practices and that an agency employee
was engaged in misconduct, Rojas sought to obtain information
about the Administration's change in hiring practices,
its use of the Biographical Assessment, and the cheating that
had reportedly taken place during the applicant testing
panel held that the Biographical Assessment's minimum
passing score and Rojas's own personal score were exempt
from disclosure under the Freedom of Information Act, 5
U.S.C. § 552(b)(2) (Exemption 2) and the Privacy Act, 5
U.S.C. § 552a(k)(6) (Exemption (k)(6)). The panel held
that the Freedom of Information Act's Exemption 2 applied
to internal rules and practices exclusively connected with
"the selection, placement, and training of
employees," including "hiring and firing." The
panel concluded that the Administration'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,
qualified under Exemption 2. The panel further concluded that
test scores were part of the "testing or examination
material" used to determine individual qualifications
for purposes of the Privacy Act's Exemption (k)(6).
Finally, the panel held that Rojas did not offer any evidence
contradicting the Administration's evidence that
applicants could use their obtained test scores to undermine
the integrity of the Biographical Assessment and compromise
the objectivity or fairness of the testing or examination
panel next considered whether the personal, non-Federal
Aviation Administration email addresses of certain
Administration employees were exempt from disclosure under
Freedom of Information Act, Exemption 6. Rojas alleged that
the addresses were necessary to determine which employees
were involved in an alleged conspiracy to help certain
applicants or to understand the information flow regarding
the alleged conspiracy within the agency. The panel held that
where Federal Aviation Administration employees used personal
email addresses to receive information relating to the
Administration's change in selecting air traffic
controllers, Rojas had carried his burden of showing that the
Administration employees' privacy interest in their
personal email addresses was outweighed by the "robust
interest of citizens' right to know what their government
is up to" in making the hiring practice changes it did.
The panel concluded that the Federal Aviation Administration
could satisfy its obligation under the Freedom of Information
Act by identifying the email recipients by name, instead of
revealing the recipients' personal email addresses.
to the question whether 202 emails withheld by the Federal
Aviation Administration were "agency records"
subject to the Freedom of Information Act's disclosure
requirements, the panel noted that the district court
provided little explanation for its grant of summary judgment
in favor of the Federal Aviation Administration on this
issue. Because in Freedom of Information cases, a district
court must provide sufficiently detailed disclosure of the
factual and legal basis for its decision, the panel vacated
the district court's order granting summary judgment with
respect to the 202 withheld emails and remanded to the
district court to apply the second prong of the test set
forth in 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), consistent with the panel's opinion.
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.
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.
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 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.
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).
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).
"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 records concerning themselves "upon
request." 5 U.S.C. § 552a(d)(1).
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)"). As with 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).
turn to the facts giving rise to this appeal.
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,
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.
changing its hiring system in 2014, the FAA gave hiring
preference to air traffic controller applicants who 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.
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 ...