Cause of Action Inst. v. OMB, No. 18-1508, 2019 WL 6052369 (D.D.C. Nov. 15, 2019) (Walton, J.)

Cause of Action Inst. v. OMB, No. 18-1508, 2019 WL 6052369 (D.D.C. Nov. 15, 2019) (Walton, J.)

Re:  Requests for internet browsing histories of OMB Director, OMB Associate Director of Strategic Communications, USDA Secretary, and USDA Director of Communications

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion for discovery; denying defendant's motion to dismiss

• Litigation Considerations, Summary Judgment:  "[T]he Court denies the defendants' Rule 12(b)(1) motion to dismiss."  The court "concludes that the question of whether the browsing histories at issue are records within the meaning of the FOIA 'pertains to the merits of [the plaintiff's] FOIA claim, rather than th[e] Court's power to adjudicate the dispute and grant the requested relief' and that 'the allegations of [the plaintiff's] [C]omplaint are more than sufficient to satisfy the minimal pleading requirements that are applicable to the initial stage of FOIA litigation.'"
   
• Litigation Considerations, Discovery & Procedural Requirements, Agency Records:  The court holds that "because the defendants have submitted reasonably detailed declarations that are probative of the issues in this case, and the plaintiff has not established bad faith on the part of the defendants, the Court concludes that permitting discovery is not appropriate in this case and therefore the plaintiff's motion to conduct discovery is denied."  The court finds that "the declarations were submitted by agency officials familiar with and capable of addressing the 'creation, possession, control, and use [of the browsing histories]; and [the defendants'] intent [with respect to the browsing histories], [their] ability to use [the browsing histories], [the] extent of reliance [on the browsing histories], and [the] integration [of the browsing histories] into [the defendants'] files.'"  "Moreover, the plaintiff's suggestion that the contested browsing histories were used by the defendants for purposes other than those described in the detailed declarations offered by the defendants is 'purely speculative' . . . ."  "Additionally, 'the [C]ourt is satisfied that no factual dispute remains' regarding the creation, preservation, or use of the requested browsing histories."  The court relates that "plaintiff argues that factual disputes exist regarding (1) the use of the contested browsing histories because '[o]nly the officials identified in [the plaintiff's] FOIA requests can provide admissible testimony about their own use of Internet browsers on agency devices (including any de minimis personal use)[,] . . . their regular use of Internet browsing history records for purposes of convenience or otherwise[,] . . . [and] the ability to segregate potentially exempt personal information from their Internet browsing histories'; and (2) '[the] [d]efendants' efforts to identify, retrieve, and preserve the Internet browsing history records at issue in this case.'"  "However, as the defendants correctly note, '[a]lthough a document creator’s testimony is one way to show that a document was not broadly used at the agency, it is not the only way.'"  "'Another way is precisely what [the] [d]efendants have submitted: testimony from knowledgeable agency officials, who would be aware of a document’s use, stating definitively that the agency has not used the documents in question.'"
   
• Procedural Requirements, Agency Records:  The court finds that, "[a]lthough some of the factors that comprise the Burka four-factor test weigh in favor of a finding that the browsing histories were under the defendants' control, because 'use is the decisive factor' pursuant to the Tax Analysts inquiry . . . and the defendants have demonstrated that they 'neither created nor referenced [the browsing histories] in the "conduct of [their] official duties," the [defendants] ha[ve] not exercised the degree of control required to subject the document to disclosure under [the] FOIA' . . . ."  "Therefore, the Tax Analysts test compels the Court to conclude that the browsing record are not agency records."
  
  "Because the first prong of the Tax Analysts test, creation or acquisition of the document by the agency, is not disputed by the defendants, . . . the Court will proceed to the second prong of the test, control of the document when the FOIA request was made, which is evaluated using the Burka four-factor test."  "As to the first Burka factor, 'the intent of the document’s creator to retain or relinquish control over the records,'" the court finds that "there is no suggestion that the defendants intended to relinquish control of the browsing histories."  "Therefore, the Court concludes that the defendants intended to retain control over the documents."  "[T]he Court agrees with the defendants that the relevant inquiry with respect to the first Burka factor focuses on the agency's intent as the creator of the document, rather than the individual employee's intent when generating the document in the course of his or her employment."  "[A]s to the second Burka factor, 'the ability of the [defendants] to use and dispose of the [browsing histories] as [they] see[ ] fit,'" the court relates that "defendants argue that the 'OMB and [the] USDA [ ] have a longstanding practice of following internet browsers' automatic deletion setting, which . . . removes the requested material from their control[,]'" but that, "even if the browsing histories were in fact deleted, the declarations show that the defendants possessed 'the ability . . . to use and dispose of the [browsing histories] as [they] s[aw] fit,' . . . and therefore the second Burka factor also weighs against the defendants' argument that the browsing histories are not agency records."  "As to the third Burka factor, 'the extent to which agency personnel have read or relied on the document,'" the court relates that "defendants represent that that they never accessed, distributed, or relied upon the browsing histories."  "Therefore, the third Burka factor supports the defendants' argument that the browsing histories are not agency records."  "As to the final Burka factor, 'the degree to which the document was integrated into the agency's record system or files,'" the court finds that "the defendants argue that 'the histories were not integrated into the agencies' files,' . . . because they 'were stored on the local drive of the employee's computer or mobile device,' and 'the only way for OMB or USDA . . . staff to access an employee's browsing history is to physically sit at the employee's work station or to virtually sign on to the workstation with the employee's assistance' . . . ."  "The plaintiff responds that '[t]he maintenance of Internet browsing history records on agency hardware, which is physically accessible by other agency officials or representatives, is sufficient to meet the fourth prong of the Burka test.'"  "Here, '[t]o the extent the [browsing histories] were on the [defendants'] computer system[s], they were "necessarily subject[ed] . . . to the control of that system's administrators.'"