Whether the Ninth Circuit erred by adopting the consultant corollary and holding that 'intra-agency memorandums or letters' in FOIA's Exemption 5 encompasses documents prepared by a private, outside consultant

QUESTION PRESENTED Exemption 5 of the Freedom of Information Act provides that federal agencies need not release privileged “inter-agency or intra-agency memorandums or letters.” 5 U.S.C. § 552(b)(5). Seven courts of appeals have interpreted the phrase “intra-agency ... memorandums or letters” to include a “consultant corollary,” shielding from disclosure documents drafted by private, outside parties and sent to federal agencies. One court of appeals has rejected this atextual approach. The question presented is: Whether the Ninth Circuit, in a sharply divided en banc decision, erred by adopting the consultant corollary and holding that “intra-agency memorandums or letters” in FOIA’s Exemption 5 encompasses documents prepared by APTMetrics, a private, outside consultant.