Cause of Action Inst. v. OMB, No. 20-5006, 2021 WL 3699794 (D.C. Cir. Aug. 20, 2021) (Rao, J.)

Cause of Action Inst. v. OMB, No. 20-5006, 2021 WL 3699794 (D.C. Cir. Aug. 20, 2021) (Rao, J.)

Re:  Request for internet browsing histories of several officials, including Director of Office of Management and Budget and Secretary of Department of Agriculture

Disposition:  Affirming district court's grant of government's motion for summary judgment

• Litigation Considerations, Jurisdiction & Procedural Requirements, "Agency Records":  The Court of Appeals for the District of Columbia Circuit relates that "[it] first consider[s] a threshold matter, namely whether the existence of an 'agency record' goes to the merits of a FOIA challenge or to [its] jurisdiction."  The court holds that "[t]he text and structure of FOIA . . . make clear that whether the requested materials are 'agency records' goes to the merits of the dispute – the 'court's authority to impose certain remedies' – rather than the court's jurisdictional power to hear the case."  The court finds that "Section 552(a)(4)(B) plainly confers upon courts the power to order a particular remedy – 'to enjoin the agency from withholding agency records . . . improperly.'"  Additionally, "[u]nderstanding Section 552(a)(4)(B) to implicate a court's remedial authority, rather than jurisdiction, is also consistent with FOIA case law and general principles of subject matter jurisdiction."  "For instance, '[t]he party invoking federal jurisdiction bears the burden of establishing' it."  "But in FOIA cases, '[t]he burden is on the agency to demonstrate, not the requester to disprove, that the materials sought are not "agency records" or have not been "improperly" "withheld."'"  "If Section 552(a)(4)(B) were interpreted as a limitation on subject matter jurisdiction, one of these principles would have to yield."  "[The court] would have to either overrule [its] case law explaining that agencies bear the burden of demonstrating that the materials sought are not agency records, or create a class of cases where the plaintiff does not bear the burden of demonstrating subject matter jurisdiction."  "Instead, [the court] follow[s] the plain meaning of Section 552(a)(4)(B), which confers remedial authority to order the production of agency records."
   
• Procedural Requirements, "Agency Records":  The Court of Appeals for the District of Columbia Circuit "hold[s] that the internet browsing histories requested by [the requester] are not agency records subject to disclosure under FOIA."  The court first notes that "[Burka] [f]actors that determine whether an agency controls a document may include:  '(1) the intent of the document’s creator to retain or relinquish control over the records; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency's record system or files.'"  "The Burka factors regarding control of a document, however, must be understood as part of the ultimate question of whether a document is an agency record."  "This question is assessed under a 'totality of the circumstances' test that 'focus[es] on a variety of factors surrounding the creation, possession, control, and use of the document by an agency.'"  The court finds that "[o]ur cases recognize that the Burka factors are not an inflexible algorithm."  "In determining whether a document is an agency record in light of the 'totality of the circumstances,' any fact related to the document's creation, use, possession, or control may be relevant."  "Here, the agencies' retention and access policies for browsing histories, along with the fact they did not use any of the officials' browsing histories for any reason, lead to the conclusion that these documents are not agency records."  Regarding control, the court finds that "OMB and USDA generally did not control the browsing histories."  "In fact, OMB and USDA have afforded their employees significant control over the browsing histories."  "[W]ith respect to all browsers other than Internet Explorer, USDA permitted employees to delete their histories before any default retention period had expired."  "Employees could also freely delete their browsing histories on mobile devices such as smart phones."  "Furthermore, USDA frequently undertook routine actions, such as updating browser versions, that could result in the permanent deletion of a browsing history, and USDA took no actions to prevent such deletion."  "OMB had similar practices."  Responding to the requester's argument, the court finds that "[m]ere authority to control, however, is not enough."  "The relevant consideration is how much control the agencies actually asserted over the documents at issue."  Regarding "the agency's ability to use and dispose of the requested documents," the court finds that "OMB and USDA both restricted official access to an employee's browsing history."  Regarding whether "the agency actually used the requested document," the court finds that "OMB and USDA did not use the officials' browsing histories for any purpose, much less a purpose connected to agency decisionmaking."  The court relates that "[the requester] argues briefly that the agencies 'implied' they read these browsing histories, but its only basis for that claim is that other agency employees could have had access to the browsing histories."  "This assertion conflates two different inquiries – whether the agency has the ability to use a document and whether it actually used the document."  "The possibility of access is not equivalent to use by the agency."  "Finally, [the court] consider[s] 'the degree to which the document was integrated into the agency's record system or files.'"  The court finds that "the browsing histories resided on the agencies' systems, which subjected them to at least a modicum of agency control."  "But many documents are now digitally preserved, and an agency does not necessarily 'control' every document found in its digital storage."  "Employees of OMB and USDA could freely delete their browsing histories, a practice incompatible with integration of these documents into the agencies' record systems."  "Moreover, the agencies had no policy of preserving the histories, and in fact routine maintenance or other projects could cause the histories to be deleted."  "The browsing histories were generated automatically and were not read or consulted by any agency employee – they were not integrated into the agency's system of records."