No.

21-133

In the Supreme Court of the United States

________________

JORGE ALEJANDRO ROJAS,

Petitioner,
v.
FEDERAL AVIATION ADMINISTRATION,
Respondent.
________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals
for the Ninth Circuit
________________

BRIEF OF THE CATO INSTITUTE AS

AMICUS CURIAE IN SUPPORT OF PETITIONER
________________

Ilya Shapiro J. Carl Cecere

William M. Yeatman* Counsel of Record
CATO INSTITUTE CECERE PC
1000 Mass. Ave., NW 6035 McCommas Blvd.
Washington, DC 20001 Dallas, TX 75206
(202) 842-0200 (469) 600-9455
[email protected] [email protected]

*Admitted to the D.C. Bar under

D.C. App. R. 46-A. Supervised by
D.C. Bar member.

September 1, 2021
 i

QUESTION PRESENTED
Whether the Ninth Circuit, in a sharply divided en
banc decision, erred by holding that “intra-agency
memorandums or letters” in FOIA’s Exemption 5 en-
compasses documents prepared by a private, outside
consultant.
 ii

TABLE OF CONTENTS
QUESTION PRESENTED .......................................... i
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICUS CURIAE............................ 2
INTRODUCTION AND SUMMARY OF
ARGUMENT ............................................................ 2
ARGUMENT ............................................................... 5
THE COURT SHOULD TAKE THIS CASE TO
RESTORE FOIA’S ESSENTIAL ROLE IN
ENSURING THAT FEDERAL AGENCIES AND
THEIR PRIVATE CONSULTANTS REMAIN
ACCOUNTABLE TO THE AMERICAN PEOPLE ... 5
A. Federal agencies have never been more
powerful, and less accountable—
especially when they work through
private consultants. ...................................... 5
B. FOIA plays an essential role in providing
oversight and accountability for federal
agencies and their armies of private
consultants.................................................. 10
C. The atextual “consultant corollary”
cripples critical oversight and
accountability for agencies’ private
consultants.................................................. 12
CONCLUSION ......................................................... 19
 iii

TABLE OF AUTHORITIES
Page(s)
Cases
Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837 (1984) ........................... 8
City of Arlington, Tex. v. FCC,
569 U.S. 290 (2013).................................................. 6
Dep’t of Commerce v. New York,
139 S. Ct. 2551 (2019)............................................ 15
Dep’t of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1 (2001) .............. 4, 10, 17
Dep’t of Justice v. Reporters Comm. for
Freedom of Press, 489 U.S. 749 (1989) .................. 10
Dep’t of Justice v. Tax Analysts,
492 U.S. 136 (1989)................................................ 12
Dep’t of the Air Force v. Rose, 425 U.S. 352 (1976) . 10
FBI v. Abramson, 456 U.S. 615 (1982) .................... 11
Food Mktg. Inst. v. Argus Leader Media,
139 S. Ct. 2356 (2019).............................................. 5
Free Enter. Fund v. Pub. Co. Accounting
Oversight Bd., 561 U.S. 477 (2010) ................. 2, 6, 9
Gundy v. United States, 139 S. Ct. 2116 (2019) ........ 7
Milner v. Dep’t of the Navy,
562 U.S. 562 (2011)................................................ 11
NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214 (1978)................................................ 10
Oklahoma v. EPA,
723 F.3d 1201 (10th Cir. 2013)............................ 8, 9
Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971) ....... 5
 iv

Statutes
5 U.S.C. § 551(1) ....................................................... 11
5 U.S.C. § 552(b)(4)................................................... 11
5 U.S.C. § 552(b)(5)..................................................... 3
5 U.S.C. § 552(b)(8)................................................... 11
5 U.S.C. § 552(f)(1) ................................................... 11
Clean Air Act, 42 U.S.C. § 110 ................................... 8
Freedom of Information Act, Pub. L. 89-554,
80 Stat. 383 (1966) ................................................... 2
Pub. L. 104-231 (1996) ............................................. 18
Pub. L. 107-306 (2002) ............................................. 18
Pub. L. 110-175 (2007) ............................................. 18
Pub. L. 111-83 (2009) ............................................... 18
Pub. L. 114-185 (2016) ............................................. 18
Pub. L. 93-502 (1974) ............................................... 17
Pub. L. 94-409 (1976) ............................................... 17
Pub. L. 95-454 (1978) ............................................... 17
Pub. L. 98-620 (1984) ............................................... 17
Pub. L. 99-570 (1986) ............................................... 18
Regulations
48 C.F.R. § 9.406-2 ..................................................... 9
48 C.F.R. § 9.407-2 ..................................................... 9
 v

Other Authorities
A Review of the FAA’s Air Traffic Controller
Hiring, Staffing, an Training Plans,
Hearing before the H. Subcomm. on
Aviation, 114th Cong., 2d Sess. (2016) ................. 13
Br. of Amici Curiae Freedom of Information
Act and First Amendment Scholars in Sup-
port of Respondent, at Parts I.B.–C, Food
Mktg. Inst. v. Argus Leader Media,
139 S. Ct. 2356 (2019) (No. 18-481) ...................... 18
Dept. of Justice, Memo. from Quin Shea to
Bob Saloshin, Exemption 5, “Chilling
Effect” and Openness in Government
(Nov. 7, 1977) ......................................................... 17
Elena Kagan, Presidential Administration,
114 Harv. L. Rev. 2245, 2332 (2001) ............. 6, 9, 10
Federalist No. 51 (James Madison) ........................... 2
H.R. Rep. No. 114- 391 (2016) .................................. 17
Harold L. Cross, The People’s Right to Know
(1977) ...................................................................... 10
Hearing on “Examining the Federal
Regulatory System to Improve
Accountability, Transparency and
Integrity” before the Senate Comm. on the
Judiciary, 114th Cong., Sess. 1 (2015) .................... 5
House Comm. on Gov't Reform-Minority
Staff, Waste, Fraud, and Abuse in
Hurricane Katrina Contracts, 109th Cong.,
2d Sess. (2006) ....................................................... 13
 vi

Jody Freeman & Martha Minow eds.,

Government by Contract: Outsourcing and
American Democracy (2009) .................................... 7
John J. Dilulio, Jr. et al., Improving
Government Performance: An Owner’s
Manual (1993) .......................................................... 7
John J. Dilulio, Jr., Response Government by
Proxy: A Faithful Overview,
116 Harv. L. Rev. 1271 (2003) ............................. 7, 8
Jon D. Michaels, Privatization's Progeny,
101 Geo. L.J. 1023 (2013) ........................................ 7
Letter from Jennifer Piel, Dep’t of
Commerce, to Laura Iheanachor, CREW
(July 26, 2021)........................................................ 15
Michael Gerson, “Taming Big Government by
Proxy,” Wash. Post, Feb. 16, 2015 ........................... 7
Michael Wines, “Deceased G.O.P. Strategists’
Hard Drives Add New Details on the
Census Citizenship Question,” N.Y. Times,
May 30, 2019 .......................................................... 15
Nicholas Bagley, Bedside Bureaucrats: Why
Medicare Reform Hasn’t Worked,
101 Geo. L.J. 519 (2013) .......................................... 8
Paul C. Light, The Government Industrial
Complex: The True Size of the Federal
Government, 1984-2018 (2019)................................ 7
Paul C. Light, The True Size of Government:
Tracking Washington’s Blended Workforce,
Volcker Alliance Issue Paper (2017) ....................... 7
S. Rep. No. 89-813 (1965) .......................................... 9
 1

1
INTEREST OF AMICUS CURIAE
The Cato Institute was established in 1977 as a
nonpartisan public policy research foundation dedi-
cated to advancing the principles of individual liberty,
free markets, and limited government. Cato’s Robert
A. Levy Center for Constitutional Studies was estab-
lished in 1989 to promote the principles of limited con-
stitutional government that are the foundation of lib-
erty. Toward those ends, Cato publishes books and
studies, conducts conferences, and issues the annual
Cato Supreme Court Review.
This case concerns Cato because it concerns the
critical role played by the Freedom of Information Act
in providing transparency and public accountability in
agency decision-making, even when—and especially
when—those decisions are outsourced to unaccounta-
ble private contractors.

INTRODUCTION AND
SUMMARY OF ARGUMENT
“[T]he great difficulty lies in this: you must first en-
able the government to control the governed; and in
the next place oblige it to control itself.” See Federalist
No. 51, 322 (James Madison) (Clinton Rossiter ed.,
1961). This demand for governmental self-control
must be addressed in any viable system of self-govern-
ment. And in the American system, the Framers
sought to address it by baking multiple mechanisms of

1
Counsel for all parties received timely notice of amicus’s in-
tent to file this brief and have consented thereto. No counsel for
any party authored this brief in whole or in part, and no person
or entity other than amicus or its members made a monetary
contribution to fund its preparation or submission.
 2

accountability into our constitutional structure, from

the rules we follow in choosing our elected represent-
atives to the system of checks and balances by which
individual liberty is protected by “ambition being
made to counteract ambition.” Id. These systems were
all designed to force government officials to remain ac-
countable to the governed and enlist every govern-
ment official in holding others in check.
The growth of the administrative state has tested
the durability of those constitutional accountability
systems. As administrative agencies have grown in
size and power, assuming ever-growing control over
Americans’ daily lives, the need for accountability has
assumed greater importance. But the agencies them-
selves have become less accountable.
Yet even as the dangers from the administrative
state have challenged the Constitution’s ability to
handle them, Congress has stepped in with a statutory
accountability assist, in the form of the Freedom of In-
formation Act, Pub. L. 89-554, 80 Stat. 383 (1966).
FOIA provides a measure of assurance that the Amer-
ican government continues to do business as the
American public expects, by making use of the Fram-
ers’ insight that “‘a dependence on the people’ would
be the ‘primary controul on the government.’” Free En-
ter. Fund v. Pub. Co. Accounting Oversight Bd., 561
U.S. 477, 501 (2010) (quoting Federalist No. 51)
(cleaned up). FOIA arms private citizens with the best
tool for them to conduct their own oversight: infor-
mation. That informational access allows everyday
Americans, nonprofits, and the press to require disclo-
sure of officials’ dealings, ensuring transparency in
public policy and accountability for policymakers.
 3

Protecting FOIA is thus critical to ensure that the

American people can keep their government officials
in check. And FOIA is doubly important in ensuring
the government’s private consultants keep properly fo-
cused on the people’s business.
Yet the court below hobbled FOIA’s ability to en-
sure transparency and accountability in an area
where they are needed most: the government’s inter-
actions with its outside private consultants. The
threat to individual liberty presented by the adminis-
trative state has only accelerated as many aspects of
governmental administration within agencies have
been outsourced to private contractors. That shift adds
another bureaucratic layer between regulators and
those charged with regulating them and puts essential
government functions in the hands of those whose per-
sonal interests might be at odds with missions of the
agencies they supplement.
The court held that FOIA exemption 5, which pre-
vents disclosure of “inter-agency and intra-agency”
communications that would be exempt from litigation
discovery, covers private consultants outside the
agency. 5 U.S.C. § 552(b)(5). The court recognized that
this was not “the most natural” reading of the text,”
Pet. App. 13a, which limited exemption 5’s protections
to “intra-agency” communications, not those with
agency outsiders. Yet the court decided that exemp-
tion 5’s text ought to nonetheless be engrafted with an
a-textual “consultant corollary” that brings agencies’
communications with outside consultants within the
protection provided by FOIA Exemption 5.
This Court cast doubt on this “consultant corollary”
in Dep’t of Interior v. Klamath Water Users Protective
 4

Ass’n, 532 U.S. 1, 9 (2001), which declared that “nei-

ther the terms of [exemption 5] nor the statutory defi-
nitions say anything about communications with out-
siders,” and prohibited exemption 5 from being ap-
plied to “communications to or from an interested
party seeking a Government benefit at the expense of
other applicants.” Klamath thus recognized that ex-
emption 5’s justifications ended at the agency’s edge—
even though it stopped short of overruling the “con-
sultant corollary” entirely.
Now the Court needs to step in to prevent the “con-
sultant corollary” from completely overriding the text
that Congress wrote. The lower courts may have justi-
fied the rule by noting the potential costs of allowing
disclosure, including potential chilling of open dia-
logue during agency deliberations and issues sur-
rounding attorney-client privilege. But Congress has
already weighed those costs and still considered dis-
closure the better option. The lower courts’ decision to
substitute their own judgment for Congress and ele-
vate intent over statutory text presents a “threat to
the separation of powers” and a serious usurpation of
the court’s “limited judicial role.” Pet. App. 62a, 66a.
It is up to this Court to put a stop to it by granting the
petition, resolving the split among the courts of ap-
peals, and getting rid of the “consultant corollary” once
and for all.
 5

ARGUMENT
THE COURT SHOULD TAKE THIS CASE TO
RESTORE FOIA’S ESSENTIAL ROLE IN
ENSURING THAT FEDERAL AGENCIES AND
THEIR PRIVATE CONSULTANTS REMAIN
ACCOUNTABLE TO THE AMERICAN PEOPLE
The “consultant corollary” was birthed in 1970s
dicta from a D.C. Circuit opinion, Soucie v. David, 448
F.2d 1067, 1078 n.44 (D.C. Cir. 1971), during an era
where such “text-light,” Milner v. Department of Navy,
562 U.S. 562, 573 (2011), readings of FOIA exemptions
were common. And it has passed unexamined from cir-
cuit to circuit ever since. But this “relic from a ‘bygone
era of statutory construction,’” Food Mktg. Inst. v. Ar-
gus Leader Media, 139 S. Ct. 2356, 2364 (2019), cannot
be squared with FOIA’s plain text. And if this atextual
expansion of exemption 5 is left standing, it will de-
prive the public of a sorely needed mechanism to pro-
vide oversight where it is needed most: in the federal
agencies’ interactions with their private consultants.

A. Federal agencies have never been more

powerful, and less accountable—especially
when they work through private
consultants.
1. The modern administrative state has gradually
outgrown the Constitution’s mechanisms for control-
ling it. It has grown massive in size. Hearing on “Ex-
amining the Federal Regulatory System to Improve
Accountability, Transparency and Integrity” before
the Senate Comm. on the Judiciary, 114th Cong., Sess.
1 (2015) (statement of Senator Grassley) (noting the
existence of over “430 departments, agencies, and sub-
 6

agencies in the federal government”). And it has

grown vast in power, accreting power from all the ma-
jor branches of the government. “[A]s a practical mat-
ter [agencies] exercise legislative power, by promul-
gating regulations with the force of law; executive
power, by policing compliance with those regulations;
and judicial power, by adjudicating enforcement ac-
tions and imposing sanctions on those found to have
violated their rules.” City of Arlington, Tex. v. FCC,
569 U.S. 290, 313–14 (2013) (Roberts, C.J., dissent-
ing). And this aggregation of power has made federal
agencies a singular force on the American landscape,
“‘wield[ing[ vast power and touch[ing] almost every as-
pect of daily life.’” Free Enter. Fund, 561 U.S. at 499.
2. But even as the administrative state’s size and
authority have grown, the mechanisms capable of
holding it in check have withered. As the result of both
congressional policymaking and their sheer size, fed-
eral agencies enjoy such a “significant degree of inde-
pendence” City of Arlington, 569 U.S. at 314 (Roberts,
C.J., dissenting), that they risk “slip[ping] from the
Executive’s control, and thus from that of the people.”
Free Enter. Fund, 561 U.S. at 49. “[T]he bureaucratic
form” of the administrative state—“in its proportions,
its reach, and its distance”—has thus proven “imper-
vious to full public understanding, much less control.”
Elena Kagan, Presidential Administration, 114 Harv.
L. Rev. 2245, 2332 (2001).
The coordinate branches are faring no better at
controlling federal agencies than the Executive.
“[J]udicial oversight” is lacking. City of Arlington, 569
U.S. at 314 (Roberts, C.J., dissenting) And Congress
more often finds itself in the role of agency-power
 7

enabler than constrainer, often deeming it convenient

to duck the “ramifications that come with hard deci-
sionmaking” by “announcing vague aspirations and
then assigning others”—like administrative agen-
cies—“the responsibility of . . . realiz[ing] its goals.”
Gundy v. United States, 139 S. Ct. 2116, 2133 (2019)
(Gorsuch, J., dissenting). Ambition is thus being made
to facilitate ambition.
3. The dangers of the administrative state have
only grown as the federal government has outsourced
the administration of many programs to private con-
tractors—including individuals, businesses, and
“large social service nonprofits.” Michael Gerson,
“Taming Big Government by Proxy,” Wash. Post, Feb.
16, 2015, https://wapo.st/3BhvasW. Now “millions of
employees show up for work every day to do work once
performed by federal employees.” Paul C. Light, The
Government Industrial Complex: The True Size of the
Federal Government, 1984-2018, 88 (2019). Those pri-
vate consultants now comprise over 40 percent of the
federal workforce. See Paul C. Light, The True Size of
Government: Tracking Washington’s Blended Work-
force, Volcker Alliance Issue Paper (2017). And they
have taken over huge swaths of the responsibilities in-
volved in running the federal government. Private
contracting is “now ubiquitous in military combat, . . .
rule promulgation, environmental policymaking,
prison administration, and public-benefits determina-
tions.” Jon D. Michaels, Privatization's Progeny, 101
Geo. L.J. 1023, 1025 (2013); see also, e.g., Jody Free-
man & Martha Minow, eds., Government by Contract:
Outsourcing and American Democracy (2009).
 8

So significant is this outsourcing trend that many

agencies today serve as little more than “financier, ar-
ranger, and overseer” of outside contractors. John J.
Dilulio et al., Improving Government Performance: An
Owner’s Manual 32 (1993). The U.S. Department of
Health and Human Services (HHS), for example, has
eleven operating divisions, a nearly $500 billion
budget, and over 65,000 employees whose main work
is framing, processing, and monitoring literally hun-
dreds of grant programs featuring literally thousands
of nongovernmental grantees.” John J. Dilulio, Jr., Re-
sponse Government by Proxy: A Faithful Overview, 116
Harv. L. Rev. 1271, 1272–73 (2003). HHS’s contractors
have also taken over much of the work in making Med-
icaid coverage decisions and providing services to pro-
gram beneficiaries. Nicholas Bagley, Bedside Bureau-
crats: Why Medicare Reform Hasn’t Worked, 101 Geo.
L.J. 519, 527–528, 532 (2013).
Outsourcing to private contractors is nearly as
ubiquitous in the EPA. That agency employs an army
of “private, for-profit contractors” to help with tech-
nical analysis and even make “policy decisions.” Dilu-
lio, Response Government by Proxy, supra at 1275. And
these consultants’ determinations are often granted
the same deference as enjoyed by the agency itself. For
instance, in Oklahoma v. EPA, the Tenth Circuit
granted deference under Chevron, U.S.A., Inc. v. Nat.
Res. Def. Council, Inc., 467 U.S. 837 (1984) to determi-
nations made by one of EPA’s private consultants in
upholding an EPA-proposed rule that would impose
sulfur-dioxide emission limits on certain coal-fired
power plants under section the Clean Air Act, 42
U.S.C. § 110. 723 F.3d 1201, 1204, 1205, 1207 (10th
Cir. 2013). Faced with the competing arguments of the
 9

“parties’ experts” on the “suitability and costs” of in-

stalling “scrubbers” to bring sulfur-dioxide levels
down to permissible limits, the court gave “deference
to the EPA,” as it involved a “technical or scientific
matter[] within the agency’s area of expertise.” Id. at
1206, 1216–17. Accordingly, many private contractors
take part in vital governmental functions, and often
enjoy the same governmental authority as agency per-
sonnel themselves.
4. Yet these private consultants and contractors
are usually far less accountable to the executive than
their counterparts inside the agency. Their relation-
ship to the agency is usually attenuated and circum-
stantial. And the chief means that agency officials
might use keep those contractors “accountable—by re-
moving them from office, if necessary,” is severely
blunted. Free Enter. Fund, 561 U.S. at 483. Absent de-
barment for some serious infraction under the Federal
Acquisition Regulations, 48 C.F.R. § 9.406-2(a)(5) &
(c); 48 C.F.R. § 9.407-2(c) the worst agency officials can
do to a consultant is threaten cancellation of their con-
tract—often one of many the consultant possesses.
Private consultants also sometimes possess private
agendas that put them at odds with agency missions.
Many work for for-profit entities that direct their en-
ergies more toward obtaining profit than serving the
public good. And some may suffer divided loyalties as
the result of dividing their time between consulting for
regulators and regulated industries. Accordingly, the
relationships between federal agencies and their con-
tractors is one of the areas of government where the
need for oversight is greatest, but the normal mecha-
nisms for governmental oversight are lacking.
 10

B. FOIA plays an essential role in providing

oversight and accountability for federal
agencies and their armies of private
consultants.
1. FOIA plays an irreplaceable role in providing ac-
countability in agencies’ dealings with their private
consultants—by making them disclosable to the pub-
lic. FOIA is Congress’s tool to fulfill “the need for
transparency,” Kagan, supra at 2332, created by the
“the very vastness of our Government and its myriad
of agencies,” S. Rep. No. 89-813, at 3 (1965). The Act
serves “to ensure an informed citizenry, vital to the
functioning of a democratic society.” NLRB v. Robbins
Tire & Rubber Co., 437 U.S. 214, 242 (1978). It arms
the people with information—sometimes pried from
“unwilling officials.” Dep’t of the Air Force v. Rose, 425
U.S. 352, 360–61 (1976). And thus armed, the public
can open the “black box” of government bureaucracy,
“the places where exercises of coercive power are most
unfathomable and thus most threatening.” Kagan, su-
pra at 2332. Citizens can expose dark places within
the government to “the sharp eye of public scru-
tiny,” Dep’t of Justice v. Reporters Comm. for Freedom
of Press, 489 U.S. 749, 779 (1989), enabling the people
to serve as a “check against corruption and hold the
governors accountable to the governed.” Robbins Tire
& Rubber Co., 437 U.S. at 242.
FOIA is thus governed by the ethos that “Public
Business is the public’s business,” Harold L. Cross,
The People’s Right to Know xiii (1977), and “disclosure,
not secrecy, is the dominant objective of the Act.” Kla-
math, 532 U.S. at 8. Consistent with this objective,
“FOIA . . . mandates that an agency disclose records
 11

on request, unless they fall within one of nine exemp-

tions, [which] are ‘explicitly made exclusive,’ and must
be ‘narrowly construed,’ ” Milner v. Dep’t of the Navy,
562 U.S. 562, 565 (2011) (quoting EPA v. Mink, 410
U.S. 73, 79 (1973) and FBI v. Abramson, 456 U.S. 615,
630 (1982)).
2. And in FOIA, Congress demonstrated a clear in-
tent to extend its mandate of accountability and trans-
parency to agencies’ communications with their out-
side consultants, because those communications gen-
erally fall outside FOIA exemptions. An agency’s com-
munications with private contractors might become
shielded from disclosure when those consultants share
information covered by Exemption 4, which concerns
records containing “trade secrets and commercial or fi-
nancial information” that is “privileged or confiden-
tial.” 5 U.S.C. § 552(b)(4). They might also enjoy pro-
tection under Exemption 8 if the communications in-
clude information “contained in or related to examina-
tion, operating, or condition reports prepared by, on
behalf of, or for the use of an agency responsible for the
regulation or supervision of financial institutions.” 5
U.S.C. § 552(b)(8) (emphasis added).
But communications between agencies and con-
tractors will not be covered by exemption 5. That ex-
emption covers “inter-agency” and “intra-agency” com-
munications—i.e., communications between and
among government agencies. An “agency” is an “au-
thority of the Government of the United States.” Pet.
App. 83a (quoting 5 U.S.C. §§ 551(1), 552(f)(1)). A con-
tractor is thus “not a government agency” under the
statute’s definition, so documents exchanged with it
 12

cannot be “inter-agency” or “intra-agency” records.

Pet. App. 82a, 91a. It really is that simple.

C. The atextual “consultant corollary” cripples

critical oversight and accountability for
agencies’ private consultants.
Shielding agency communications with contractors
under the “consultant corollary” prevents the public
from accessing information that Congress thought
should be disclosed. And doing so cripples the over-
sight and accountability FOIA meant to provide, be-
cause Congress had numerous reasons for focusing on
the interactions between agencies and their private
consultants and making them available to the public.
1. For one thing, communications between agen-
cies and consultants may be the only information the
public can obtain about agencies’ private consultants.
Those private consultants’ internal deliberations can-
not be examined via FOIA, because they do not involve
interactions with government agencies and therefore
generate no “agency record” within the agency’s “con-
trol” or “possession” that would be subject to FOIA dis-
closure. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,
144–45 (1989). Only when private contractors com-
municate with agencies will an agency record be gen-
erated that the public could obtain, making these com-
munications the only means by which the public can
examine whether these private consultants are doing
their jobs properly.
Denying the public access to these records would
therefore prevent citizens from obtaining answers to
vital questions about how outsourcing is transforming
government, whether essential functions are being
 13

performed by competent consultants, whether those

consultants are capable of delivering work as prom-
ised, whether the work they deliver is accurate and
grounded in sound science, or whether it is systemi-
cally biased, infringing individual rights, or even do-
ing the job it is intended to do. Preventing access to
this information will also deny the public information
about whether agencies are providing proper over-
sight to those consultants.
The answers to these questions can be life-alter-
ing—as FEMA demonstrated during Katrina, when
its private contractors systematically failed to deliver
as promised, and the costs were measured in incalcu-
lable pain and human suffering. See generally House
Comm. on Gov't Reform-Minority Staff, Waste, Fraud,
and Abuse in Hurricane Katrina Contracts, 109th
Cong., 2d Sess. (2006).
This is also why access to the records at the center
of this case is so critical. They concern a test that de-
termines whether people who have invested time,
money, and effort into becoming Air-Traffic Control-
lers will be permitted to get a job in their chosen field.
That test should be considered legitimate only if it can
survive rigorous public scrutiny and can be “statisti-
cally shown to predict workplace success.” (Pet. at 7)
But the FAA outsourced the creation of the test to pri-
vate consultants, Pet. App. 8a, and those consultants
provided the only “independent” evaluation of the
test’s validity—a validation that the FAA used to de-
fend the test to Congress, to Rojas, and the public at
large. See A Review of the FAA’s Air Traffic Controller
Hiring, Staffing, and Training Plans, Hearing before
the H. Subcomm. On Aviation, 114th Cong., 2d Sess.,
 14

21 (2016) (Statement of Rep. LoBiondo), https://ti-

nyurl.com/yyd3cw35; see also Pet. App. 51a.
Without being able to uncover the FAA’s communi-
cations with the consultants who created and vali-
dated the test—including the summaries of the tests
and the test validation documents that Rojas sought,
Pet. App 75a-76a—there is no way for anyone outside
the government to determine whether that validation
was ever performed, what the validation process en-
tailed, or indeed, whether the test has any proven sta-
tistical validity at all. The “consultant corollary”
should not be permitted to prevent the public from in-
vestigating these vital questions.
2. Public access to agency communications with
private consultants is also critical in uncovering fraud,
corruption, and waste. Public sector contractors fre-
quently obtain work through lobbying and influence-
peddling as much as through technical expertise. That
raises risks of corruption, undue influence, and even
fraud. Agency officials may be unable or unwilling to
discover these abuses, since they might be the vic-
tim—or an accomplice. It is thus vital that the public
be permitted to examine the interactions between gov-
ernment officials and contractors, because those inter-
actions are where the corruption, influence-peddling,
and fraud occurs.
3. Finally, shielding agencies’ communications
with private contractors under the “consultant corol-
lary” could provide a perverse incentive for agencies to
outsource their dirtiest work to contractors—things
that agencies know will not survive legal or public
scrutiny. Indeed, such dark outsourcing is already oc-
curring, as the Trump Administration’s unsuccessful
 15

attempt to add a citizenship question to the U.S. Cen-

sus illustrates in vivid detail. The Court invalidated
that effort based on something it found to be missing
from the administrative record: a line of reasoning
that could match up “the decision the Secretary” of
Commerce Wilber Ross made to add the citizenship
question and “the rationale he provided” for doing so—
protecting the Voting Rights Act—which “seem[ed] to
have been contrived.” Dep’t of Commerce v. New York,
139 S. Ct. 2551, 2556 (2019).
But quite apart from the issue of whether the ab-
sence in the record of any proper motive for adding the
citizenship question should have disqualified that
question, the Commerce Department also possessed
an improper motive that it kept outside the adminis-
trative record. The Department hired an outside con-
sultant, Thomas Hofeller, to determine if Republicans
could gain partisan advantage if the question was
added. Using Texas as an example, Hofeller concluded
that adding a citizenship question “would be advanta-
geous to Republicans and non-Hispanic whites, and
would dilute the political power of the state’s Hispan-
ics.” Michael Wines, “Deceased G.O.P. Strategists’
Hard Drives Add New Details on the Census Citizen-
ship Question,” N.Y. Times, May 30, 2019,
https://perma.cc/9EUP-PAQ8. It was this chance for
partisan advantage, not any concern for protecting the
VRA, that drove the decision to change the census.
The most alarming aspect of this story is that the
only reason Hofeller’s studies and communications
were ever made public was because his daughter went
through his hard drive after he passed away. Id. They
were never produced in discovery. And the Commerce
 16

Department has shielded at least some of the commu-

nications between Hofeller and the Department from
FOIA disclosure, asserting that they fall under Ex-
emption 5. See Letter from Jennifer Piel, Dep’t of Com-
merce, to Laura Iheanachor, CREW (July 26, 2021),
https://bit.ly/2WuELxm. If the a-textual “consultant
corollary” remains law, then even more dark outsourc-
ing will be encouraged. And that is a compelling rea-
son why it should not be left standing.
5. Furthermore, none of the policy reasons courts
have offered for the “consultant corollary” serve to jus-
tify its judicial annexation to the statute.
Courts have noted that one purpose of exemption 5
was to encourage a full and frank exchange of ideas
during the agency policymaking process. See Pet. App.
14a. But Congress was very specific that its concern
for the deliberative process extended only to the
agency policymaking process. In the text of Exemption
5, Congress distinguished between the deliberative
processes it sought to facilitate and shield from disclo-
sure and those it wanted to be made public. And Con-
gress put discussions between agencies and private
consultants squarely in the latter camp, deeming the
public interest in exposing those interactions to sun-
light to be worth any risk to the deliberative process
that might result. This interest in fostering limited de-
liberation provides no general invitation for courts to
decide for themselves which deliberations to facilitate,
nor does it provide allowance for judges to bring them
into the protections of the statute by fiat. The deliber-
ation-fostering justification for shielding communica-
tions under Exemption 5 ends at the agency’s edge.
 17

The notion that the “consultant corollary” is needed

to protect attorney-client privilege or outside attor-
ney’s work product fares no better. Br. 27-28, Pet. App.
14a, 31a-32a. This concern is not only speculative, be-
cause few agencies hire outside lawyers, Pet. 29 (citing
Pet. App. 68a n.10), it also leads to an overbroad rem-
edy, because Exemption 5 covers far more than just
privileged documents. It covers anything unobtainable
in discovery, Klamath, 532 U.S. at 8.
Changing Exemption 5 to address concerns about
privilege is also largely unnecessary, since Exemption
4 already prevents disclosure of confidential infor-
mation protected by privilege. But worst of all, judicial
concerns over privilege fail to justify the “consultant
corollary” because such concerns belong to Congress.
It is Congress’s job to weigh the concerns over privi-
lege against the public’s interest in disclosure. And
Congress gave every indication that it believed “an at-
torney for the Government, paid from public funds,
should be just as accountable to the public which pays
his or her salary as should any other category of well-
paid public servant.” Dept. of Justice, Memo. from
Quin Shea to Bob Saloshin, Exemption 5, “Chilling Ef-
fect” and Openness in Government 2 (Nov. 7, 1977). If
Congress deems the benefits of disclosure to outweigh
the risks, the courts are obliged to respect Congress’s
judgment rather than rewrite Congress’s statute. The
Court should intervene to ensure that they do so.
If invalidating the “consultant corollary” forces
agencies to be more circumspect about whether to hire
outside counsel, and agencies will they communicate
with them, then so be it. Those functions can be
brought back inside the agency. And if Congress wants
 18

to reinstitute the corollary or wishes to provide an ex-

ception that specifically addresses privilege and work-
product issues concerning outside attorneys, it can
certainly do that too.
Congress has shown great willingness to revisit
FOIA “to better balance the public’s right to know,”
H.R. Rep. No. 114-391, 8 (2016), having amended stat-
ute 10 different times since its enactment, 2 and having
held scores more hearings and compiled countless
more reports. See Br. of Amici Curiae Freedom of In-
formation Act and First Amendment Scholars in Sup-
port of Respondent, at Parts I.B.–C, Food Mktg. Inst.
v. Argus Leader Media, 139 S. Ct. 2356 (2019) (No. 18-
481).
The statute that Congress could—and likely
would—draft in response to this case would enjoy
greater constitutional legitimacy than the lower
courts’ decisions expanding Exemption 5. And a stat-
utory remedy to privilege concerns will also prove bet-
ter capable of achieving the proper balance for an ex-
emption than judges wielding blunt weapon of appel-
late review to hammer an atextual and overbroad
“consultant corollary” into the statute. Accordingly, if

2
See Pub. L. 93-502 §§ 1-3, 88 Stat. 1561-64 (1974); Pub. L.
94-409, § 5(b), 90 Stat. 1247 (1976); Pub. L. 95-454, tit. IX, §
906(a)(10), 92 Stat. 1225 (1978); Pub. L. 98-620, tit. IV, Subtitle
A, § 402(2), 98 Stat. 3357 (1984); Pub. L. 99-570, tit. I, subtit. N,
§§ 1802, 1803, 100 Stat. 3207, 3207 (1986); Pub. L. 104-231, §§ 3-
11, 110 Stat. 3049 (1996); Pub. L. 107-306, tit. III, subtit. B, §
312, 116 Stat. 2390 (2002); Pub. L. 110-175, §§ 3, 4(a), 5, 6(a)(1),
(b)(1), 7(a), 840(a), 12, 121 Stat. 2525, 2526, 2527, 2530
(2007); Pub. L. 111-83, tit. V, § 564(b), 123 Stat. 2184 (2009); Pub.
L. 114-185, § 2, 130 Stat. 538 (2016).
 19

the “consultant corollary” is to become law, it should

be through a law properly passed by Congress, not
through judicial usurpation of the lawmaking func-
tion. And the Court should take this case to excise the
“consultant corollary” and give Congress that chance.

CONCLUSION
The petition should be granted.
Respectfully submitted,
Ilya Shapiro J. Carl Cecere
William M. Yeatman* Counsel of Record
CATO INSTITUTE CECERE PC
1000 Mass. Ave., NW 6035 McCommas Blvd.
Washington, DC 20001 Dallas, TX 75206
(202) 842-0200 (469) 600-9455
[email protected] [email protected]

*Admitted to the D.C. Bar un-

der D.C. App. R. 46-A. Super-
vised by D.C. Bar member.

September 1, 2021