the morning honors me please the court name is michael pearson i represent the opponent's batter for a row us in is a predatory matter i'd also like to reserve five minutes and also try to watch the clock this morning the background of this case impacts the public interest mr o haas was an air traffic control student who applied to become employed by the f a a taking a biometric or biographic test  twenty fifteen he failed that test and asked the f a a to provide underlying validation data to show that that test was in fact related to his qualifications to become an air traffic controller ross had was finishing maybe ation degree was a commercial pilot he had substantial aviation background and he wanted to know why he and thousands of others similarly situated individuals did not meet the the scope was limited to summaries or included the validation documents the adequacy of search issue the government's burden to show that they did a reasonable search based upon the request and whether the docs were interagency memorandum the district court held that they were in or agency memoranda and that the private contractor a p the metrics who work with the government to design and validate the tests were a government agency that the work product privilege applied to the summaries and it mr austin not met his burden regarding the adequacy of search issue the first issue i think that subsumes and really relates and is dispositive this case is the scope of the requests in relevant part mr o us request stated i am requesting information regarding the empirical validation of the biographical assessment noted in the rejection notice this information includes any report created by given to or regarding a p t metrics evaluation and creation and scoring of the assessment the words i think to be focused on and that is the second sentence stated includes includes not a  plain wording of that would require the f a a to do an adequate search for the validation study that they told mr ross that they hadn't or took in his rejection notice and that members of the f testified and i don't think the government disputes that alleged validation study occurred in response to mr all houses requests he got nine pages i was told it was nine pages of summary documents and that was all there was well the argument you're making that the f a a failed to conduct a search that was reasonably calculated to un cover all the relevant documents and if so why did you agree that summary judgment was t metrics and have you have that armstrong an actual f a a employee mr scott worked for the outside company for decorations to be sufficient to show that the search was adequate adequate law requires that you state the actual procedures use the staff members contacted the files and e mails examined the time spent on the various searches and the number of the number of documents or pages get at the same thing really which is as to the scope of this search and i'm trying to figure out whether your problem is you think they didn't search widely enough within the f a a because it would behoove you to answer the summaries question then you're looking for the underlying data and my here's my problem if that's the case and i think that's probably likely otherwise it would be awfully easy to evade a foyer request and really if he doesn't have the expertise to do this kind of human factors analysis or that or well this isn't human factors but you know it's easy to imagine many examples where this type of study would be outsourced but but but but i your briefing kind of does two things one is talks about the scope of the search and even if i give you all of what you're arguing about yes they have an obligation to go get it from the contractors and whatnot that you don't you still run right into the work product problem i don't believe their argument is yes we have this study done and we had it's done in anticipation of litigation with a range of case actually speaks that that's a very good point actually documents that are normally prepared in ordinary course of business as validation studies historically are not only by the code of federal regulations the statute or the excuse me the regulation we cited but also by industry you an a hypothetical rightmost i don't want to derail you sure it's a hypothetical where they've outsourced this and you've got this you're trying to convince us this was done in the ordinary course of business and their response is we would been threatened with suit and so this is  product privilege and i would really appreciate your response to that well first of all the timing doesn't work the validation studies prior to testing is you have to be done prior to legally issuing the test so you just look at the time line that is incorrect also the threat of litigation was not regarding this issue at all the only threat of litigation the f a a had at this point was basically purging a list of twenty six hundred students that are graduated from c g i programs had the merit based certification acquired were standing in line to be hired by the f a a the december of two thousand and thirteen if i'm in the broad change purge that list of those twenty six hundred students many both genders and certain many races from college campuses who started diversity by the way that list was perth they were then told they had to stand in line and take this biographical assessment the biographical assessment of the studies to show that it was valid despite industry standard in past f a practice where they did reveal the underlying validation studies peer review as a necessary part of showing that the test in fact was just and it was designed to be fair and the f a use a p t metrics the reason that it doesn't apply the reason the consultant corollary certainly should not apply is threefold number one is not within the statute itself the corollary consultant were a p p metric it's a shield of the government contractor defense isn't here it's not like a federal tor claims act case it doesn't comport with foia transparency specifically after the amended foia law where the government meant to increase transparency not reduce it and congressional intent and it's bad public policy turn encourage offshoring of critical documents like this public documents to private contractors this simply would allow federal agencies to take documents that should be revealed such as aptitude tests that ha take this new biometrics test i don't think that's your i q that's not the case before the court today damn right ok so i just want to be clear about that graph and it's fine for them to outsource whether they have the expertise or not it's fine for them to outsource either imagine circumstances where they wouldn't have the expertise but b that isn't me so that's not your argument either that's not an argument you think you have an obligation though to go to sleep in what has been outsourced and i think that you have a strong argument that otherwise that would be run contrary to for ya but doesn't that still get you back to work product and i think your response to work product is you think the chronology doesn't line up in my understanding your argument is wrong or is absolutely much more tickled to me basically the validation study has to be done prior a proper validation study prior to the test being put out for public use to screen people for employment well what was it done prior to it seems the critical point is whether or not it was prepared in anticipation of litigation are you are you are you arguing that they haven't been threatened with suit yet it's they were threatened suit for a different  rule regarding these biometric has to in fact validate it prior to putting it out for public use now we are facing minute that ricky can and a high level second in command of h r at the f a a admitted that and  by the civil aeronautical medical institute and it was very well received and it was used to screen air traffic control at because each one of these students had taken at sat had passed the c g i test and had obtained a recommendation from the faculty of those schools many or most of which were x or travel trailers that this person has the qualities and aptitude to become an air traffic controller and twenty fourteen early january eighth of twenty fourteen the colleges were notified that the f a a was going to purge the list and in that testimony or statement to the colleges they said there is a peer reviewed basically assessment that everybody's going to be forced to take that was early twenty fort mr rojas didn't take that one hand graduate yet he took the twenty fifteen one which was the subsequent test so that's the timeline i got one short question for you why is the transcript of the june fifteenth two thousand and sixteen you go further down the transcript the head of the union said no it was not and that's what's out and that's the issue we're trying to find out was validated or not and passed the f a a has been very forthcoming as industry standard and the statu requires excuse me the regulation requires and publishing this data it shines light on it let's people know of all races and both genders if this thing was designed correctly and allows people with professional competence and expertise to look at that and make it saying you didn't pass and a pass or given america great it would give more information that's why these not only mr rojas but is of public interest just curious what i do wrong why did i pass i had the background the expertise to do that and that's where these questions are and that's why we're asking that the government be transparent and if in fact it was validated study done appropriately you think would be published on billboards throughout the country not hidden and i see that i only have thirty seconds left so i would like to in case there's an argument for a series of types of information i think i believe there were initially three it was narrowed down during the administrative process in addition it was centrally received at f a a and farmed out to the components of f where they believe those documents might be found there were four of them and three of the subcomponents who responded are not at issue in this case there were sponsors or not issue in this case counts and i had agreed to that so there was a response with additional documents that are not those before the court here the focus of this case was always about the records that were retrieved from a g c one hundred which is a notation for not just general counsel's office but the labor division of the general counsel's office at headquarters in washington d c this is a small office ten attorneys in the office so when a request was made for records it was very simple to go to the approximately four attorneys that were currently working on the the litigation and this issue about the the certification of the test that the biographical assessment tests and ask them to go through their files these were attorneys that were familiar with what  a would would require of them and knew exactly where to look as opposed to a typical for your case that your honour's might see where we have someone doing an electronic search of thousands of records this was very focused and so that search was the issue in the district court however we did stipulate at some point we don't need to go to a settlement conference we told the district court judge that because we've talked about this and we've agreed that the nine pages that were found by a c one hundred were the documents and issue and the legal determination had to be made by the judge there wasn't anything more that could be done at settlement i don't understand why they were that was produced even if it was going to be  withheld under work product why it was summaries and not the actual validation study itself because that was all that was in that office we did identify everything that junk you have an obligation to go to your consultant and get the validation study itself and not just the summary of it not necessarily under for what the district court can do in this court is demand or instruct the agency to release documents that are one improperly with hell one improperly withheld two being withheld in fact and three our agency records so but you can't say that this was done and at your request for purposes of litigation and withhold the documents on that basis and also say that these people who work for you to prepare the study you don't have an obligation to get the study and their their records from them i understand what you're on are saying i think the jump that we've made here and i certainly appreciate that counsel has a lot of experience in this area and has been involved in a lot of litigation and also himself was an air traffic controller so he understands the process but the great leap that's made is that because these kind of validation studies which he describes as lengthy over one hundred page type documents were done in the past and he admitted during the hearing in the district court that the last one he saw was for two thousand and thirteen that they should have been done in the current process but i think what comes through in the declarations that we've submitted is that there was a change as counsel referred to earlier they were changing the process of how they hired air traffic controllers and in the interim while that was all ongoing there was a need to hire so they came up with a process in two thousand and fourteen that may or may not have been complete and then they amended it and came up with another process in two thousand and fifteen so i'm not sure when or if those kinds of studies described by to provide them information about the biographical assessment and i don't mean to be evasive i just don't want to volunteer what's in the records that have not been disclosed ok but it really feels now like you're not only wanting to do this sort of shield think now feels like you're got three different answers one is i'm not sure the documents exist two is they've there outsourced and then the third is the work product problem and i don't understand the yes it is a discussion of what's been done by the agency by a b c metric i find this response and find it very concerning this is a for a request this is about public disclosure the government should know whether the documents exist that's my first comment i guess it's not a question but it's really concerning to me and the second is whether you're responding on a legal basis that you think that would be different that your search doesn't doesn't need to include what you're contractors have done although our consultants have done my share i think the view that is expressing that i don't think that works for you and then there's the work product argument and it seemed to me you have it a real dog in the fight on the work product level but his response to that is that the chronology doesn't line up so for just for my notes only speaking for myself it would be helpful for me to hear why you think the work product privilege applies well because as set forth in the declarations there concerning the two thousand and fifteen assessment or b a s when he took that the money to correct and we originally saw out document for two thousand fourteen that was wrong we corrected it we did another search we came up with what was relevant to two thousand yes that even if they were done before there was notice in early march that there was litigation ongoing so those summaries or any validation that might have been done  beforehand was already ongoing and what how do you know that if we don't know you just said a minute ago you don't know if the underlying data exists and now you're now your date stamping it for me well if summaries are being i'm going with the argument that the plaintiff's counsel raised that these must have been done beforehand so assuming that they were done beforehand and i don't know that they were they were it would have we would have had notice that there was going to be litigation while that was going on and with all the education concerned people who notice that sam lawsuit had to be based on some action in the past right it was them alleged injury in the past whether it was discrimination or  whatever it couldn't be about the twenty fifty no but i believe how are these covered by work product because the change to the biographical assessment precipitated all of that all of the e complaints and the foyer requests here those ai jobs are heading in today this is going to be an easy case i'm not getting the answers i was expecting i apologize i am trying to answer the best of my billet but i will point out that because we went forward not believing that the search was an issue any longer because had it been we would have continued to work in the district court before briefing that's certainly our policy to continue to go back and forth about which documents are at issue issue before this court we believe is whether the nine pages of documents are subject to the attorney work product ok and it you think that's the limited legal issue we need to talk about even though he's looking for the underlying data right but i do think that counsel has raised the search issue however i'm trying to explain if i can to the church or why we don't have a lot of background information in the record because we went forward on the belief that we were only arguing about these nine pages of documents to see everyone was satisfied that this was the universe of documents at issue and it was a simple legal determination of or met thought that that opposing counsel wasn't looking for the underlying data is that right well yes i think we thought that he was concerned about what we did find and was satisfied that that was everything that would be located remember in the agency's headquarters office of ten attorneys right is that that has baked in the legal position your your position that you don't have to look through your consultants files well those are not would not be agency records but i certainly would have engaged in that process with him in the district court if we had if the issue had arisen before the briefing on summary of necessity have to summarize some empirical data so if there was litigation as you anticipate i can understand the argument that the summaries might be protected but why is the empirical d ata the underlying data why can't they get that that doesn't say anything other than fact camera and i think that we documents the summary nine pages ok just to summerise not the underlying data pretz so why did you produce the underlying data i mean the question is you have to do a reasonable search focus was got it thank you ok so now i have another sort of legal question can you distinguish for me judge souter's holding in the klamath case and then after th is how is this the organization a t c or whatever it is how is that a governmental agency  of the work product known i think just justice souter's and you've got to answer the first question if the plane reading of the language of the statute is it has to be a government agency  carr says you don't get to do that or if you don't get that argument that's a six circuit case i recognized but it says nope outside agencies are not governmental agencies i understand and so if the  talking about here however those records were not in a g c and that was all we were focused on in the underlying court should we go back and check whether those documents exist  elsewhere that's something we would have taken care of in the district court and had a better record before this court however we all agreed that the issue was the nine documents so we believed that what was the really in mr rove has interest were these nine documents i think that changed once we started arguing in the district court those nine documents that were reviewed by the district court judge are very clearly work product it's a situation where counsel's office asked for something specific and h p t metrics responded to them i can't go into much more detail about what it is without disclosing the content of what's in those records and that coordinator he didn't send it to a g c the counsel's office in the past the f a a would farm out these requests to the other branches of the f a a that might have the data in this case it went to the general counsel's office who are now trying to use an attorney client or work product privilege even though they have a past history and the way it's always done is you send the request to the different offices it may have the documents they didn't do that and now they're coming in trying to use a legal shield no hemingway case states very clearly that an agency has to be careful not to requests so strictly that the questers denied information that the agency well knows exist and i'd like to say one l thing that the record excerpts a record seventy nine eighty one ninety two ninety three show we did not waive the adequacy of search issue and mr rojas his own request for the documents specifically as be deemed to be summaries or anything else we even argued in district court that if these are summaries we we want the actual imperiled data the f a a phrases i'm a summaries i do think this is kind of fembot rig a shell game again how can you have a summary of empirical data and they come up here and allege that we don't know if the empirical data exists whether or not the categories the nine pages are covered by work product and i believe the richie case controls and some other cases but even if you rule that that that does control the issue about whether the underlying data should be given to mr  data used to validate a test would have any type of attorney client work product privilege because it has to be done to validate the test was never decided in the district court that's why summary judgment among a lot of other issues and reasons is improper in this case the right