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Rojas v. Federal Aviation Administration

United States Court of Appeals, Ninth Circuit

October 22, 2019

Jorge Alejandro Rojas, Plaintiff-Appellant,
v.
Federal Aviation Administration; United States Department of Transportation, Defendants-Appellees.

          Argued and Submitted March 6, 2019 Phoenix, Arizona

          Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, District Judge, Presiding D.C. No. 2:15-cv-01709-SMM

          Michael W. Pearson (argued), Curry Pearson & Wooten PLC, Phoenix, Arizona, for Plaintiff-Appellant.

          Paul 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 Defendants-Appellees.

          Before: Richard R. Clifton, Sandra S. Ikuta, and Michelle T. Friedland, Circuit Judges.

         SUMMARY [*]

         Freedom of Information Act/Privacy Act

         The 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.

         Suspecting 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 process.

         The 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 process.

         The 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.

         Turning 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.

          OPINION

          IKUTA, CIRCUIT JUDGE

         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 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).

         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 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 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 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 ...


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