Husch Blackwell v. Washington Metropolitan Transit Authority

Amicus brief filed by the Reporters Committee for Freedom of the Press and 23 media organizations

Court: U.S. Court of Appeals for the Fourth Circuit

Date Filed: May 12, 2020

Update: On June 25, 2020, the U.S. Court of Appeals for the Fourth Circuit dismissed the case after Husch Blackwell told the court it would no longer pursue its appeal.

Background: For years, members of the press and the public have closely followed the construction of the Washington Metropolitan Transit Authority’s Silver Line, a new subway line that has been plagued by budget issues, delays, and setbacks. The Washington Post and other news organizations have specifically reported on serious deficiencies with the concrete ties used in the Silver Line’s construction.

In 2019, the law firm Husch Blackwell filed a request under WMATA’s Public Access to Records Policy seeking access to a third-party consultant’s report concerning the concrete used to construct the line. WMATA denied Husch Blackwell’s request, citing an exemption in PARP that mirrors Exemption 5 in the federal Freedom of Information Act. That exemption shields some privileged “intra-agency” communications from public disclosure.

Husch Blackwell filed a lawsuit against WMATA, but the U.S. District Court for the Eastern District of Virginia granted summary judgment in favor of the transit agency. The district court claimed that the consultant’s report was still an “intra-agency” record under the so-called “consultant corollary” theory, which allows some third-party work completed on behalf of agencies to fall under the FOIA exemption.

Husch Blackwell has appealed to the U.S. Court of Appeals for the Fourth Circuit.

Our Position: The Fourth Circuit should reverse the district court’s order granting summary judgment in favor of WMATA and reject the consultant corollary theory, which helps keep agencies’ communications with private-sector consulting companies shrouded in secrecy.

• The Supreme Court has repeatedly underscored the importance of adhering to FOIA’s plain text when interpreting its exemptions. A plain-text reading of FOIA’s Exemption 5 does not permit agencies to withhold communications involving third-parties, like outside consultants.
• Because courts must interpret FOIA’s Exemption 5 and PARP’s equivalent exemption in line with the ordinary meaning of the statutory language, the Fourth Circuit should reject the consultant corollary theory and reverse the district court.
• FOIA’s legislative history supports the disclosure of the requested records: Lawmakers wanted the public to access information about the government’s business.
• The Federal Advisory Committee Act, which emphasizes open meetings and public involvement in government, further demonstrates Congress’s intent that records generated in the scope of a government agency’s relationship with outside consultants should be accessible to the public.
• The consultant corollary theory denies the public access to valuable records that illuminate government conduct.

Quote: “The public’s interest in the records at issue is particularly acute because the condition of the concrete ties used in construction of the Silver Line could impact public safety.”

Related: In March, a media coalition led by the Reporters Committee asked the U.S. Court of Appeals for the Ninth Circuit to reject the consultant corollary theory under FOIA Exemption 5. In 2015, Jorge Rojas requested Federal Aviation Administration records related to the agency’s decision to reject his job application. Some of these records were from tests performed by consultants hired by the FAA, and the agency denied Rojas the records under the consultant corollary theory. As in this case, the district court granted summary judgment in favor of the agency. However, the Ninth Circuit reversed the lower court’s summary judgment motion, rejecting the consultant corollary, but accepted a request from the FAA for a rehearing en banc, which will take place before 11 judges of the Ninth Circuit.