922 F.3d 907

CHRISTEN, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority that Rojas cannot use the Freedom of Information Act (FOIA) to access materials that the FAA does not actually possess, and I agree that the scope of the FAA's in-house search for responsive documents was inadequate.
I disagree with the majority's rejection of the "consultant corollary"-a doctrine adopted by seven of our sister circuits. The "consultant corollary" acknowledges that Exemption 5's protection of privileged documents extends to materials prepared by an agency's retained consultants. This allows agencies to shield privileged materials from disclosure to the same extent they would in discovery. By rejecting the consultant corollary, the majority gives the FOIA a truly capacious scope. After today, the fact that a document was prepared in anticipation of litigation by a government-retained consultant will present no barrier to anyone who wants to access it by filing a FOIA request.
Our court has not had an occasion to squarely address the consultant corollary in a published opinion. Now that the question is presented, we should follow the First, Second, Fourth, Fifth, Eighth, Tenth, and D.C. Circuits, all of which adopted the consultant corollary to shield work product generated by the government's outside consultants in anticipation of litigation. Because the majority's decision rejects the corollary, upends basic discovery rules, and disregards the careful balance Congress struck when it enacted the FOIA, I respectfully dissent.
* * *
The circumstances in which the present dispute arose provide critical context for its resolution. In 2012, the FAA undertook a comprehensive review of the Air Traffic Control Specialist selection and hiring process and hired APTMetrics, a human resource consulting firm, to assist in that effort. APTMetrics modified a biographical assessment tool the FAA used to test job-related characteristics. In 2014, the FAA implemented a refined process for selecting air traffic controllers, incorporating APTMetrics's recommendations. Following the implementation of the FAA's new process, an unsuccessful applicant filed an Equal Employment Opportunity Commission (EEOC) complaint, seeking to represent a class of unsuccessful air traffic controller applicants. That putative class is represented by Mr. Rojas's counsel. The FAA then revised the biographical assessment for use in 2015, and APTMetrics worked on those revisions.
Meanwhile, in anticipation of the pending EEOC litigation, the FAA asked the Chief Operating Officer of APTMetrics to prepare a summary of its validation work. APTMetrics delivered an initial summary in December of 2014 and supplemented it the following month. By August of 2015, a second group of unsuccessful applicants filed a complaint and petition for class certification, this time challenging the 2015 biographical assessment. The second putative class is also represented by Mr. Rojas's lawyer.
Mr. Rojas applied, but was not hired, to be an air traffic control specialist in 2015. He later filed a FOIA request seeking information about the biological assessment's empirical validation and its "evaluation and creation and scoring." The FAA conducted a search and found three documents that APTMetrics created at the FAA's request and in anticipation of litigating the EEOC complaints. The FAA withheld the three documents pursuant to FOIA's Exemption 5, which exempts from disclosure "inter-agency or intra-agency memorandums or letters that would not be available by law to a party ... in litigation with the agency." 5 U.S.C. § 552(b)(5). The FAA claimed the withheld documents were protected attorney-client communications and work product, and that they were pre-decisional and deliberative.
Mr. Rojas filed an administrative appeal and, eventually, a complaint in district court challenging the denial of his FOIA request. The district court conducted an in camera review, ruled that the FAA's search for records was reasonable, and granted summary judgment in favor of the government. The court described the withheld documents as "summaries of [1] the [air traffic control] hiring process, [2] the 2015 biographic assessment, and [3] the validation process and results."
Our review of the district court's order granting summary judgment is governed by several well-established principles that the majority does not dispute. First, we know that materials prepared in anticipation of litigation and at the request of an attorney are protected work product and need not be produced in litigation. See, e.g., Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 S.Ct. 451 (1947). Second, in the context of civil discovery, we have long recognized that work-product protection extends to materials created by consultants or third-party experts. See, e.g., United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); see also Fed. R. Civ. P. 26(b)(4) (exempting draft expert reports, communications with expert witnesses, and consulting experts materials from discovery). Third, the Supreme Court has explained that FOIA's Exemption 5 precludes the disclosure of information that would be privileged in litigation. See United States v. Weber Aircraft Corp., 465 U.S. 792, 799-802, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984) (explaining that certain air crash safety investigation materials could be withheld pursuant to FOIA's Exemption 5 because courts had previously recognized that those materials were privileged in discovery). These principles alone dictate the appropriate resolution in this case: because the validation summaries would not be available to Mr. Rojas in discovery, he cannot acquire them through a FOIA request.
The majority concludes that Exemption 5 only shields materials generated by federal agencies in-house, not those created by the government's retained consultants. Seven other circuits have considered this argument and rejected it. These circuits all adopted the "consultant corollary," agreeing that Exemption 5 reflects Congress's determination that the government is entitled to the same litigation privileges afforded to other parties. Indeed, the propriety of the consultant corollary was foreshadowed by well-recognized precedent defining the scope and proper application of litigation privileges and protections. The Supreme Court has "consistently rejected" the suggestion that parties in litigation with the government "can obtain through the FOIA material that is normally privileged" or use FOIA requests "to supplement civil discovery." Id. at 801-02, 104 S.Ct. 1488 ("We do not think that Congress could have intended that the weighty policies underlying discovery privileges could be so easily circumvented."). All of these authorities lead to the conclusion that the FOIA does not require federal agencies to produce retained experts' work product created in anticipation of litigation.
I.
Congress enacted the Freedom of Information Act in 1966 as a means of increasing transparency and broadening access to government materials. "FOIA `sets forth a policy of broad disclosure of Government documents in order to ensure an informed citizenry[.]'" Ante at 916 (quoting FBI v. Abramson, 456 U.S. 615, 621, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982)). But long before Congress passed the FOIA, courts and legislatures recognized that parties to litigation are entitled to shield certain materials from discovery and disclosure. For example, there is no question that litigants need not produce materials covered by the attorney-client privilege or documents that constitute attorney work-product, including those prepared by the party's agents and consultants. See, e.g., Hickman, 329 U.S. at 510-11, 67 S.Ct. 385 (work product materials are protected); Cont'l Oil Co. v. United States, 330 F.2d 347, 350 (9th Cir. 1964) (attorney-client privilege is protected); Nobles, 422 U.S. at 238, 95 S.Ct. 2160 (work product encompasses material prepared by attorney's investigators and other agents in anticipation of litigation); see also Fed. R. Civ. P. 26(b)(4) advisory committee's note to the 1970 amendment.
Congress was well aware of discovery privileges when it drafted the Freedom of Information Act, and it recognized that certain exceptions to FOIA's disclosure regime were necessary in order for the government's many agencies to operate effectively. See S. Rep. No. 89-813, at 9 (1965) (acknowledging that government efficiency "would be greatly hampered" if agencies were "forced to `operate in a fishbowl.'"). FOIA's exemptions reflect careful balancing between the benefits of transparency and the government's need to maintain the confidentiality of some types of records. For example, FOIA exemptions allow federal agencies to withhold classified materials (Exemption 1), trade secrets (Exemption 4), and internal personnel and medical files (Exemption 6). See generally 5 U.S.C. § 552(b)(1)-(9).
Exemption 5 has been described as the most important of FOIA's exemptions. It specifically precludes the disclosure of inter- or intra-agency materials "that would not be available by law" to adverse parties in litigation. 5 U.S.C. § 552(b)(5); see Weber, 465 U.S. at 801, 104 S.Ct. 1488. Rojas does not dispute that Exemption 5 shields attorney work-product created by government agency staff, and this concession is not surprising. There was nothing novel about Exemption 5's carve out; without it, the FOIA would have obliterated a common law rule dating back decades. F.T.C. v. Grolier Inc., 462 U.S. 19, 20, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983) ("It is well established that this exemption was intended to encompass the attorney workproduct rule.").
Given this backdrop, the resolution of Rojas's appeal should be straightforward: he is not entitled to the APTMetrics documents because the FAA's consultant prepared them at the FAA's request, and in anticipation of litigation. This result would be the same whether the materials were prepared by an FAA employee sitting in an FAA cubicle, or by a consultant hired to do the same thing. We need look no further than Exemption 5 to know that the FAA was not required to disclose the three withheld documents. See 5 U.S.C. § 552(b)(5).
II.
The majority reviews the text of Exemption 5, decides that consultants do not qualify as "agencies," and concludes that FAA's consultant-prepared materials are not "intra-agency memorandums" within the scope of Exemption 5. See Ante at 916.
I read the statute differently. Exemption 5 states that FOIA's disclosure requirement "does not apply" to "interagency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency[.]" 5 U.S.C. § 552(b)(5). The Supreme Court has explained that the phrases "an agency" and "the agency" in Exemption 5 refer to the same entity. See Weber, 465 U.S. at 798, 104 S.Ct. 1488 (explaining that a plaintiff could not access privileged documents through a FOIA request because "they would not be available by law to a party other than [the Air Force] in litigation with [the Air Force].") (alternation in original) (internal quotation marks omitted).
Nothing in Exemption 5's text requires that the materials be created by the agency itself, nor do the statute's definitions dictate that an "intra-agency memorandum" includes only those materials that agency employees (as opposed to retained consultants) prepare in-house. Here, the FAA specifically engaged APTMetrics to use its expertise to create biometric summaries on behalf of the FAA. The FAA took possession, reviewed and relied on the summaries, then stored and maintained them. For all intents and purposes, the three withheld documents are the FAA's memoranda and we should treat them just as we would treat a memorandum created by an internal FAA employee.
An agent acts "on the principal's behalf," meaning the agent's acts are the principal's acts. See Agency, Black's Law Dictionary (10th ed. 2014). The nature of an agent-principal relationship requires that the "agent's actions have legal consequences for the principal[,]" id., and we have recognized that consultants are agents whose statements can bind their paying clients. See Reid Bros. Logging Co. v. Ketchikan Pulp Co., 699 F.2d 1292, 1306 (9th Cir. 1983) (finding that a consultant's report, distributed to a party in litigation, was properly introduced as a party admission under Fed. R. Evid. 801(d)(2)(C)). Because the FAA retained APTMetrics as a consultant and paid it to prepare the sought-after biometric assessment summaries in anticipation of class action litigation, those summaries should be treated as if FAA employees prepared them. Unless we ignore the entirety of the statute, its legislative history, analogous case law, and controlling case law addressing the limits of permissible discovery, the documents must be afforded Exemption 5 protection.
The actual text of Exemption 5 easily encompasses the requested materials because Exemption 5 protects "intra-agency memorandums[.]" Of course, "intra" simply means "within," see intra, The American Heritage Dictionary of the English Language (1978), and we know that the FAA paid APTMetrics to prepare the summaries on its behalf. The agency received the summaries, and as far as we can tell it has been maintaining and storing them ever since. The responsive documents are therefore "within" the FAA in both a physical and proprietary sense, so the FAA's consultant-created memoranda are "intra-agency memorandums," strictly and textually speaking.
FOIA's broader statutory framework also indicates that the FAA's consultant-prepared materials are entitled to Exemption 5's protection. The FOIA defines "record" and explains that the materials that would qualify as "an agency record" include information "maintained by an agency in any format[.]" 5 U.S.C. § 552(f)(2). This is consistent with the Supreme Court's opinion in Forsham v. Harris, where the Court defined FOIA's "agency records" (through reference to similar statutes) as materials "made or received by an agency[,]" and "created or received" by the government. 445 U.S. 169, 182-86, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980) (emphasis in original). Forsham further explained that "[t]he legislative history of the FOIA abounds with other references to records acquired by an agency." Id. at 184, 100 S.Ct. 977 (emphasis added). There is no dispute that the FAA received APTMetrics's summaries and that it remains in possession of them. As such, those summaries necessarily constitute "agency records" pursuant to FOIA's definitions.
Today's opinion divorces "agency records" from "intra-agency memorandums," and reaches the paradoxical conclusion that the three withheld documents are not "intra-agency memorandums" even though they certainly fall within the definition of "agency records." It is difficult to conjure an adequate rationale or a holistic reading of the statutory text by which all "agency records" fall within FOIA's scope but only an arbitrary subset of privileged "agency records" are protected by Exemption 5.
In the majority's view, the consultant corollary ignores FOIA's distinction between intra- and inter-agency materials. Ante at 916. But distinguishing between those two categories is simple if the consultant corollary is properly applied: Exemption 5 encompasses materials prepared in-house or by an agency's consultant, and the materials are either "intra-" or "inter-agency" depending on whether they are shared outside the agency.
Parties engaged in litigation with the government will use today's ruling to circumvent the government's claims of work product, attorney-client communication or any other privilege recognized by our discovery rules, even though the federal rules expressly bar discovery into those kinds of materials, see Fed. R. Civ. P. 26(b)(4)(D), and despite the long-established rule that the government is entitled to the same litigation privileges as other parties. In re Lindsey, 158 F.3d 1263, 1269 (D.C. Cir. 1998) ("Congress intended that agencies should not lose the protection traditionally afforded through the evidentiary privileges simply because of the passage of the FOIA."); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 154, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) ("It is equally clear that Congress had the attorney's work-product privilege specifically in mind when it adopted Exemption 5 and that such a privilege had been recognized in the civil discovery context by the prior case law.").
Today's decision only disadvantages the government; the privileges afforded to non-government parties will remain intact because only the government responds to FOIA requests. Thus, the decision simultaneously puts the government at a stark litigation disadvantage, departs from the Supreme Court's observation that "Exemption 5 simply incorporates civil discovery privileges[,]" including those "well recognized in the case law[,]" Weber, 465 U.S. at 799, 104 S.Ct. 1488, and disregards a clear congressional directive that the government should receive the same discovery privileges as other parties.
Notwithstanding these concerns, the majority rejects the corollary because it is "not convinced that the potential harm to the government warrants adopting the consultant corollary's broad reading of Exemption 5." Ante at 919. Respectfully, this is insufficient in light of the decades-long track record of courts uniformly upholding the government's discovery privileges, which Congress expressly preserved by adopting Exemption 5. See Weber, 465 U.S. at 801, 104 S.Ct. 1488 ("We do not think that Congress could have so easily intended that the weighty policies underlying discovery privileges could be [ ] easily circumvented [through a FOIA request]").
The majority suggests that "absent the consultant corollary, agencies can still avoid disclosure under Exemption 5 by keeping potentially privileged material within the government." Ante at 919. But that suggestion has it backwards. The government is keeping APTMetrics's work product, which is why the materials fall within the scope of the search for responsive documents. If the documents were only possessed by APTMetrics, they would not be subject to the FOIA at all. Forsham, 445 U.S. at 186, 100 S.Ct. 977. If the majority means that agencies can avoid disclosure by creating materials in-house, that theory fails to acknowledge that dozens of federal agencies must rely on the expertise of outside consultants to perform specialized tasks. Regrettably, today's opinion will likely dissuade agencies from seeking helpful expertise from outside consultants in the first place.
III.
There is nothing new or novel about the consultant corollary, as evidenced by the dearth of case law supporting today's decision. Circuit courts have been applying the consultant corollary since at least 1971. Just five years after Congress enacted the FOIA, the D.C. Circuit adopted the consultant corollary in Soucie v. David, 448 F.2d 1067, 1078 n.44 (D.C. Cir. 1971) (explaining that an outside expert's report should "be treated as an intra-agency memorandum of the agency which solicited it" for purposes of Exemption 5). Since that decision, the First, Second, Fourth, Fifth, Eighth, and Tenth Circuits have adopted the consultant corollary. See Gov't Land Bank v. Gen. Serv. Admin., 671 F.2d 663, 666 (1st Cir. 1982) (exempting from FOIA disclosure a property appraisal performed by independent contractor); Lead Indus. Ass'n Inc. v. OSHA, 610 F.2d 70, 83 (2nd Cir. 1979) (exempting from FOIA disclosure private consultant's analysis of lead levels provided to agency); Hanson v. U.S. Agency for Int'l. Dev., 372 F.3d 286, 292-93 (4th Cir. 2004) (exempting from FOIA disclosure a document prepared by outside attorney as attorney work product); Hoover v. U.S. Dept. of the Interior, 611 F.2d 1132, 1137 (5th Cir. 1980) (holding that an appraisal report by an outside expert constituted an intra-agency document for purposes of Exemption 5); Brockway v. Dept. of Air Force, 518 F.2d 1184, 1194 (8th Cir. 19 ¶) (exempting from FOIA disclosure statements provided to agency by outside witnesses due to pre-trial privilege); Stewart v. U.S. Dep't of Interior, 554 F.3d 1236, 1245 (10th Cir. 2009) (holding that consultant's materials were properly withheld pursuant to Exemption 5 because "[f]or purposes of [a FOIA] analysis" the consultant "functioned akin to an agency employee").
The majority criticizes the first consultant corollary case, Soucie v. David, for failing to cite supportive authority for the consultant corollary, ante at 917, but Soucie was a case of first impression. See Fong v. Immigration & Naturalization Serv., 308 F.2d 191, 194 (9th Cir. 1962) ("The case is one of first impression and neither party has been able to cite cases or decisions in point."). More importantly, the majority never rebuts the reasoning seven of our sister circuits have proffered to justify this corollary to Exemption 5-i.e., that "[t]he Government may have a special need for the opinions and recommendations of temporary consultants, and those individuals should be able to give their judgments freely without fear of publicity." Soucie, 448 F.2d at 1078 n.44. Nor could it. In the context of civil discovery, courts have long accepted that agencies benefit from the assistance of outside experts and that the unnecessary risk of disclosure may put a damper on the government's ability to acquire the knowledge and expertise it requires. See, e.g., CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1162 (D.C. Cir. 1987) ("[F]ederal agencies occasionally will encounter problems outside their ken, and it clearly is preferable that they enlist the help of outside experts skilled at unravelling their knotty complexities.... To force an exposure is to stifle honest and frank communication between agency and expert by inhibiting their free exchange of thought") (internal quotation marks omitted); 37A Am. Jur. 2d Freedom of Information Act § 182 (2019) ("Agencies have a special need for the opinions and advice of temporary consultants, and the quality of consultants' advice, like that of agency employees, may suffer if the advice is made public."). This case is a good example. It is doubtful that decision makers at the FAA would have engaged in a full and candid conversation about the efficacy of the biometric assessment or ways it might be improved if they were aware that their communications would be subject to disclosure in the prospective class action litigation. And there is no question the public is best served if the most refined selection criteria are used to choose applicants best qualified to perform the exquisitely sensitive positions held by air traffic controllers.
The only circuit to express doubt about the consultant corollary is the Sixth Circuit. In Lucaj v. Federal Bureau of Investigation, 852 F.3d 541, 546-47 (6th Cir. 2017), the Sixth Circuit seemed to reject the rule, except there were no consultants at issue in Lucaj. The plaintiff in Lucaj was arrested in Montenegro, and the FBI believed that he was connected to terrorist attacks. Id. at 543. Because Lucaj believed the United States played a role in his arrest, he sent a FOIA request to the FBI. Id. at 543-44. The FBI produced some responsive documents, but it withheld two that the Department of Justice had sent to foreign law enforcement agencies. Id. at 544-45. The Sixth Circuit rejected the FBI's claim that the documents were exempted from the FOIA and ordered them produced. In the process of issuing this ruling, the Sixth Circuit purported to reject the consultant corollary, id. at 546-47, but because no consultants or consultantcreated materials were at issue in Lucaj, its brief rejection of the consultant corollary can only be regarded as dictum. Notably, the majority is conspicuously wary of Lucaj, see ante at 918 (disagreeing with Lucaj's review of applicable Supreme Court precedent), but it subscribes to the same "plain text" interpretation of "intra-agency" that the Sixth Circuit endorsed. By relying on a conclusion that was merely dictum in Lucaj, today's opinion creates a circuit split.
The majority also cites Department of Interior v. Klamath Water Users Protective Association, 532 U.S. 1, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001), but that case lends no support to its position. In Klamath, the dispute involved competing claims by the Klamath Tribe and others to certain water rights. Id. at 5-6, 121 S.Ct. 1060. The federal government solicited the Klamath Tribe's input on a potential global resolution. Id. Other litigants sought access to the Klamath Tribe's memorandum via the FOIA, and on appeal the Court considered whether the Department of Interior could rely on Exemption 5 and the consultant corollary to withhold it. Id. at 6-7, 121 S.Ct. 1060. The Court rejected the Department's claim that it could withhold the Tribe's settlement proposal under Exemption 5-but not because it rejected the consultant corollary. On the contrary, the Court acknowledged that in the cases where courts have applied the consultant corollary, "the records submitted by outside consultants played essentially the same part in an agency's process of deliberation as documents prepared by agency personnel might have done." Id. at 10, 121 S.Ct. 1060. The Court went on to recognize that in those circumstances "consultants may be enough like the agency's own personnel to justify calling their communications `intra-agency.'" Id. at 12, 121 S.Ct. 1060. Ultimately, the Court rejected the Department of Interior's claimed exemption because the Tribe was decidedly not acting on the government's behalf. Far from it, the Tribe was an interested party advocating for its own interests. Id. at 11-15. Klamath is more a benediction of the consultant corollary than an indictment-after all, the question whether the corollary is correct is antecedent to whether it applies in a particular situation. Indeed, at least one circuit reads Klamath as the Court's tacit affirmance of the consultant corollary. See Stewart, 554 F.3d at 1244 ("In Klamath, after recognizing that Exemption 5 extends to government agency communications with paid consultants, the Court declined to analogize tribal communications to consultant communications.").
At bottom, though seven circuit courts have expressly adopted the consultant corollary and the Supreme Court's Klamath decision has responded favorably (albeit implicitly) to the rule, only one other circuit has rejected the corollary, in dictum. Against that ledger, the majority marshals a crimped view of the term "intra-agency" and reaches a conclusion that casts aside the need to read the FOIA as an integrated whole, as well as decades of persuasive authority.
IV.
Today's opinion creates a lopsided loophole that prejudices only the federal government. Weber, 465 U.S. at 801, 104 S.Ct. 1488. The consultant corollary fits logically with the text and purpose of the FOIA and ensures that government agencies can appropriately shield privileged and sensitive materials from FOIA responses, just as they would in discovery. I would adopt the consultant corollary, and respectfully dissent from the majority's decision.
The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation.
See Soucie v. David, , 1078 n.44 (D.C. Cir. 1971); Gov't Land Bank v. Gen. Serv. Admin., , 666 (1st Cir. 1982); Lead Indus. Ass'n Inc. v. OSHA, , 83 (2nd Cir. 1979); Hanson v. U.S. Agency for Int'l. Dev., , 292-93 (4th Cir. 2004); Hoover v. U.S. Dept. of the Interior, , 1137 (5th Cir. 1980); Brockway v. Dept. of Air Force, , 1194 (8th Cir. 1975); Stewart v. U.S. Dep't of Interior, , 1245 (10th Cir. 2009).
Mr. Rojas's request sought three categories of information, but the parties stipulated that the only category at issue in this appeal is the request for information regarding: "[T]he empirical validation of the biographic assessment noted in the rejection notification," including "any report, created by, given to, or regarding APTMetrics's evaluation and creation and scoring of the assessment."
The district court said the validation summaries were " inter-agency memorandums," but its reasoning (and supporting authority) clearly related to " intra-agency" memoranda. For reasons explained here, the withheld documents plainly qualify for Exemption 5 protection as "intra-agency" memoranda.
See 33 Fed. Prac. & Proc. Judicial Review § 8441 (1st ed.) ("The Freedom of Information Act provides nine exemptions from the disclosure requirements.... These are, in order of importance, 5, 7, 1, 3, and 2.").
Quoting Coastal States Gas Corp. v. Dep't of Energy, , 862 (D.C. Cir. 1980).
Curiously, the majority quotes Weber to justify its approach. Ante at 916. But Weber is hardly supportive of the majority's analysis. Indeed, contrary to the majority's holding here, Weber explained that the plain language of Exemption 5 incorporated discovery privileges and allowed agencies to shield privileged materials. 465 U.S. at 799-801, 104 S.Ct. 1488.
The fact that consultant-prepared materials may constitute "intra-agency memorandums" for purposes of Exemption 5 does not mean that agencies are obligated to search for responsive FOIA materials held only by consultants. As the majority explains, the Supreme Court's decision in Forsham v. Harris forecloses Rojas's challenge to the FAA's failure to search APTMetrics's files in response to his FOIA request. I share the majority's concern about the possibility that the FOIA could be circumvented by storing materials offsite with agency contractors. But I agree with the majority that we are bound by Forsham, and it dictates that Rojas cannot access APTMetrics's offsite documents through a FOIA request.
I also agree with the majority's conclusion that the FAA has failed to show that it undertook an adequate in-house search. See Ante at 913-15. However, the proper scope of a FOIA search is distinct from whether materials falling within that scope may be exempted from disclosure.

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