Ninth Circuit Court of Appeals rejects the “consultant corollary theory,” and holds that records regarding alleged biotest validation authored by government contractor APTMetrics and withheld by the Federal Aviation Administration were not “intra-agency” documents, and that the Freedom of Information Act’s Exemption 5 did not apply.
Ninth Circuit Court of Appeals has ruled that the Federal Aviation Administration's withholding of the documents used to allegedly validate the 2015 Biographical Assessment used when hiring Air Traffic Control Specialists was improper.
Michael Pearson, of Curry, Pearson & Wooten, who also represents individuals in a national class action lawsuit who were impacted by the FAA's hiring process and use of the Biotest, was counsel in this case. The Ninth Circuit's decision is available here.
Today's decision in Rojas v. FAA reverses a 2016 District Court decision that allowed the FAA to hide documents that justified the use of the 2015 Biographical Assessment. The documents, as described by the FAA, describe the development and the validation process of the test. The exam, developed by APTMetrics, was introduced in 2014 when the FAA changed its long-standing hiring process to hire air traffic controllers. The 2014 test became the subject of public scrutiny and outrage after many that had previously attended school to become air traffic controllers under the FAA's previous hiring process were told they were "not qualified" because of the results of the test. The FAA changed the test several times and ultimately discontinued its use in 2017 following the disclosure of the answer key from the 2014 test. The answer key showed that the FAA awarded more points for being unemployed than having aviation experience.
According to Pearson “the documents at issue, in this case, will shine some light as to the basis for why the FAA and APT Metrics chose the answers that it did for the test. The FAA had a long-standing practice of releasing validation studies for the previous test used to hire air traffic controllers, the AT-SAT.” The Court noted that “[D]isclosure, not secrecy, is the dominant objective" of the Freedom of Information Act.
The decision requires the FAA to release the nine pages of validation "summaries" that it received from APT Metrics. The decision also finds that the FAA did not perform an adequate search for documents concerning the validation of the test, mainly because the agency only produced what it considered to be "summaries" and not the actual validation. Judge Molloy, writing for the majority of a three-judge panel, wrote, "[b]ut summaries by necessity summarize something else; there is no indication that there was any search conducted for underlying documents." The Court rejected the FAA's claim that documents made by a contractor can be exempt under one of the FOIA exemptions, noting "[b]ecause the consultant corollary is contrary to Exemption 5’s text and FOIA’s purpose to require broad disclosure, we decline to do so."
The FAA, which has attempted to hide these documents from the public since the changes to the hiring process in 2014. Today's decision allows the public to check the FAA's actions and will help paint a better picture of what was going on in the FAA when the changes were made.