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Elec. Privacy Info. Ctr. v. Nat'l Sec. Comm'n on Artificial Intelligence, No. 19-02906, 2019 WL 6498868 (D.D.C. Dec. 3, 2019) (McFadden, J.)


Elec. Privacy Info. Ctr. v. Nat'l Sec. Comm'n on Artificial Intelligence, No. 19-02906, 2019 WL 6498868 (D.D.C. Dec. 3, 2019) (McFadden, J.)

Re:  Request for records concerning Commission's work

Disposition:  Denying defendant's motion to dismiss

  • Procedural Requirements, Entities Subject to the FOIA:  The court "concludes that the Commission must comply with FOIA."  The court relates that "[t]he Government argues that the Court should dismiss [plaintiff's] FOIA claims against the Commission because it is not an 'agency' subject to FOIA."  The court "consider[s] the [John S. McCain National Defense Authorization Act for Fiscal Year 2019], the Commission's organic statute."  "It decrees:  'There is established in the executive branch an independent Commission to review advances in artificial intelligence[.]'"  "That Commission 'shall be considered an independent establishment of the Federal Government as defined by section 104 of title 5.'"  "Section 104 of title 5, meanwhile, explains that '[f]or purposes of this title, "independent establishment" means . . . an establishment in the executive branch . . . which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment.'"  "Congress could have hardly been clearer."  "Having said that FOIA applies to 'any . . . establishment in the executive branch,' . . . it chose to call the Commission an 'establishment in the executive branch.'"  Turning to the government's arguments, the court finds that "[a]ccording to the Government, whenever it would raise separation of powers concerns to say that an entity is subject to FOIA, the text of § 552(f)(1) must give way."  "The canon of constitutional avoidance would kick in, and a court would have to apply [a] functional test to determine whether the entity must comply with FOIA."  "Here, the Government says, it would raise separation of powers concerns to say that the Commission is an 'establishment in the executive branch' subject to FOIA."  "The Government reasons that under [a] functional test, the Commission does not exercise 'substantial independent authority' and is thus exempt from FOIA."  "This argument fails for many reasons."  "First, the Government misunderstands the canon of constitutional avoidance."  "It is not a license to ignore unambiguous text."  Also, the court explains that "[the cases cited by defendant] do not hold that the functional test applies whenever imposing FOIA on an entity would raise separation of powers concerns."  "They stand for the much narrower proposition that a functional approach is apt when the question is whether an official or entity close to the President must comply with FOIA."  Additionally, the court notes that "[t]he Government apparently believes that the Commission does not wield [independent] authority."  "Yet at the same time, the Government stresses that the President 'exerts no control over the Commission's functioning.'"  "As the functional test is not relevant here, the Court need not press the point more."  "Suffice it to say that the Commission's functions match the functions that were enough for [the court in a previous case] to call [another entity] an 'agency.'"
  • Litigation Considerations & Expedited Processing:  The court holds that "[plaintiff] has plausibly alleged that its requests met all three factors."  The court finds that "[t]he third factor is the most straightforward."  "[Plaintiff] sought records about the work of the Commission, a federal agency, and [plaintiff] asserts the records are also relevant to action that the President or Congress may take in response to the Commission's recommendations."  "[Plaintiff] has thus plausibly alleged that its requests concerned 'federal government activity.'"  "The Court's conclusion is the same for the first and second factors."  "It was thus urgent that the public have access to these reports and related records, such as briefing materials and minutes from meetings."  "Access would allow [plaintiff] and the public to understand and critique the Commission's work."  "[Plaintiff] also makes other allegations that suggest the Commission's work was and remains a matter of 'current exigency' and that delay in receiving records would compromise a 'significant recognized interest.'"  "The Court concludes only that [plaintiff] has strung together enough allegations on this score to pass the plausibility threshold."
Court Decision Topic(s)
District Court opinions
Litigation Considerations, Supplemental to Main Categories
Procedural Requirements, Entities Subject to the FOIA
Procedural Requirements, Expedited Processing
Updated December 9, 2021