Cause of Action Institute v. OMB ( 2021 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued December 2, 2020               Decided August 20, 2021
    No. 20-5006
    CAUSE OF ACTION INSTITUTE,
    APPELLANT
    v.
    OFFICE OF MANAGEMENT AND BUDGET AND UNITED STATES
    DEPARTMENT OF AGRICULTURE,
    APPELLEES
    Appeal from the United States District Court
    for the District of Columbia
    (No. 1:18-cv-01508)
    Ryan P. Mulvey argued the cause for appellant. With him
    on the briefs was R. James Valvo III.
    Dennis Fan, Attorney, U.S. Department of Justice, argued
    the cause for appellees. With him on the brief were Ethan P.
    Davis, Acting Assistant Attorney General, and Mark B. Stern,
    Attorney.
    Jeffrey L. Light was on the brief for amicus curiae Property
    of the People, Inc., in support of neither party.
    2
    Before: SRINIVASAN, Chief Judge, RAO, Circuit Judge,
    and SENTELLE, Senior Circuit Judge.
    Opinion for the Court filed by Circuit Judge RAO.
    RAO, Circuit Judge: Through the Freedom of Information
    Act (“FOIA”), Cause of Action Institute sought the release of
    the internet browsing histories of several officials, including
    the Director of the Office of Management and Budget and the
    Secretary of the Department of Agriculture. The district court
    held these browsing histories are not agency records, so they
    are not subject to disclosure under FOIA. We agree and thus
    affirm.
    I.
    Cause of Action is a nonprofit organization committed to
    government transparency and openness. It submitted a request
    for the internet browsing histories of several senior agency
    officials over a specified period of approximately six months,
    asserting that the histories were subject to disclosure under
    FOIA. 5 U.S.C. § 552(a)(3)(A); id. § 552(a)(4)(B). Browsing
    histories record internet activity. When a person navigates to a
    specific webpage, the internet browser, such as Google Chrome
    or Internet Explorer, records the location of that webpage.
    Unless this feature is disabled, the browser will maintain a
    history of all webpages to which a person has navigated.
    Cause of Action’s requests for browsing histories included
    two officials by name—Office of Management and Budget
    (“OMB”) Director John Michael Mulvaney and U.S.
    Department of Agriculture (“USDA”) Secretary Sonny
    Perdue—and two by position—the OMB Associate Director of
    Strategic Planning and Communications and the USDA
    Director of Communications (the “officials”). OMB
    acknowledged receiving Cause of Action’s request, but never
    processed it. USDA, however, denied Cause of Action’s
    3
    request, explaining that the browsing histories were not
    integrated into its record system, and thus the Department did
    not have sufficient control over the browsing histories such that
    they constituted “agency records” within the meaning of FOIA.
    5 U.S.C. § 552(a)(4)(B). USDA also denied Cause of Action’s
    administrative appeal.
    Having failed to secure the release of the browsing
    histories, Cause of Action brought suit against OMB and
    USDA in federal district court, contending the histories are
    agency records subject to disclosure under FOIA. The district
    court granted summary judgment to the agencies. Cause of
    Action Inst. v. OMB, 
    2019 WL 6052369
    , at *1 (D.D.C. Nov.
    15, 2019). The court first determined that whether something
    qualifies as an agency record goes to the merits of the case, not
    to the court’s subject matter jurisdiction. On the merits, the
    court considered the four factors identified in Burka v. U.S.
    Department of Health and Human Services, 
    87 F.3d 508
    , 515
    (D.C. Cir. 1996), to determine whether an agency “controls”
    the requested documents to the extent required for them to
    constitute agency records. The district court found three of the
    Burka factors favored treating the browsing histories as under
    the agencies’ control. Nonetheless, the court held the agencies
    lacked the requisite control because agency personnel did not
    read or rely upon the browsing histories. Cause of Action, 
    2019 WL 6052369
    , at *10–11. The district court accordingly
    concluded the browsing histories did not qualify as agency
    records. The court also denied Cause of Action’s request for
    discovery into whether and how the officials used their
    browsing histories. 
    Id. at *6
    –8. Cause of Action timely
    appealed.
    II.
    We first consider a threshold matter, namely whether the
    existence of an “agency record” goes to the merits of a FOIA
    challenge or to our jurisdiction. The district court held that it
    4
    goes to the merits. Although neither party challenges that
    decision, we address the question because it pertains to our
    jurisdictional authority, which we must consider irrespective of
    whether it is raised by the parties. See Steel Co. v. Citizens for
    a Better Env’t, 
    523 U.S. 83
    , 94–95 (1998).
    Subject matter jurisdiction concerns “a court’s power to
    hear a case.” See Arbaugh v. Y & H Corp., 
    546 U.S. 500
    , 514
    (2006) (cleaned up). By contrast, the merits of a dispute pertain
    to the remedial powers of the court, i.e., whether a party has
    successfully established the elements of its claim such that a
    court may grant relief.
    FOIA authorizes “jurisdiction to enjoin the agency from
    withholding agency records … improperly … from the
    complainant.” 5 U.S.C. § 552(a)(4)(B). Whether that provision
    pertains to the court’s subject matter jurisdiction or merely its
    power to order a remedy on the merits has not been squarely
    addressed by this court.1 The text and structure of FOIA,
    however, 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
    1
    In a related context, we have held that it was error to dismiss on
    jurisdictional grounds, rather than on the merits, when a FOIA
    requester sought disclosure from an agency not covered by FOIA
    under Section 552(a)(4)(B). Citizens for Resp. & Ethics in Wash. v.
    Off. of Admin., 
    566 F.3d 219
    , 225 (D.C. Cir. 2009); see also Statton
    v. Fla. Fed. Jud. Nominating Comm’n, 
    959 F.3d 1061
    , 1064 (11th
    Cir. 2020) (holding that Section 552(a)(4)(B)’s use of the word
    “jurisdiction” refers to the court’s remedial powers, not its subject
    matter jurisdiction); Main Street Legal Servs., Inc. v. Nat’l Sec.
    Council, 
    811 F.3d 542
    , 566–67 (2d Cir. 2016) (same). But see
    Goldgar v. Off. of Admin., Exec. Off. of the President, 
    26 F.3d 32
    ,
    34–36 (5th Cir. 1994).
    5
    court’s jurisdictional power to hear the case. United States v.
    Philip Morris USA Inc., 
    840 F.3d 844
    , 850 (D.C. Cir. 2016).
    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.” 5 U.S.C.
    § 552(a)(4)(B). This text is similar to language in other statutes
    we have indicated go to the court’s remedial authority. See
    Philip Morris, 830 F.3d at 851 (citing 15 U.S.C. § 378(a),
    which gives courts “jurisdiction to prevent and restrain
    violations of this chapter and to provide other appropriate
    injunctive or equitable relief”; and 31 U.S.C. § 5365, which
    provides “jurisdiction to prevent and restrain [certain]
    transactions by issuing appropriate orders”). Indeed, it is
    “commonplace” for the term “jurisdiction” to be used in the
    sense of “specifying the remedial powers of the court.” Steel
    Co., 
    523 U.S. at 90
     (emphasis omitted).
    Understanding 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. Lujan v. Defs.
    of Wildlife, 
    504 U.S. 555
    , 561 (1992). 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.’” DOJ v. Tax Analysts,
    
    492 U.S. 136
    , 142 n.3 (1989); Aguiar v. DEA, 
    865 F.3d 730
    ,
    735 (D.C. Cir. 2017) (same). If Section 552(a)(4)(B) were
    interpreted as a limitation on subject matter jurisdiction, one of
    these principles would have to yield. We would have to either
    overrule our 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, we follow the plain meaning of Section 552(a)(4)(B),
    6
    which confers remedial authority to order the production of
    agency records.
    Whether requested documents are “agency records” goes
    to the merits of the dispute, not the court’s subject matter
    jurisdiction. Although Section 552(a)(4)(B) does not confer
    subject matter jurisdiction, the district court had jurisdiction
    pursuant to 28 U.S.C. § 1331, and we have jurisdiction over
    Cause of Action’s appeal from the district court’s final decision
    under 28 U.S.C. § 1291.
    III.
    Turning to the central issue in the case, we consider
    whether the browsing histories are agency records that the
    agencies must disclose pursuant to FOIA. See Consumer Fed’n
    of Am. v. Dep’t of Agric., 
    455 F.3d 283
    , 287 (D.C. Cir. 2006)
    (reviewing de novo whether documents are “agency records”).
    FOIA limits the documents a requester may receive to
    those that are “agency records.” 5 U.S.C. § 552(a)(4)(B).
    Although the term is not defined in the statute, we do not read
    the term literally to encompass “all documents in the
    possession of a FOIA-covered agency.” Judicial Watch, Inc. v.
    U.S. Secret Serv. (“Judicial Watch II”), 
    726 F.3d 208
    , 216
    (D.C. Cir. 2013). Rather, “the term ‘agency records’ extends
    only to those documents that an agency both (1) create[s] or
    obtain[s], and (2) controls … at the time the FOIA request
    [was] made.” 
    Id.
     (cleaned up). The agencies do not dispute that
    they created the browsing histories at issue, so this case turns
    on their control of the histories.2
    2
    Because the parties do not dispute the agencies created the browsing
    histories, we treat the issue as conceded. It is far from clear, however,
    that the agencies created the browsing histories within the meaning
    of FOIA. Agency employees in some sense create a history through
    their internet browsing, but the browser automatically generates the
    7
    Factors 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.” Burka,
    
    87 F.3d at 515
     (cleaned up). 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.” Bureau of Nat’l Affairs, Inc. v. DOJ
    (“BNA”), 
    742 F.2d 1484
    , 1490, 1492 (D.C. Cir. 1984).
    The parties dispute which of these two “tests”—BNA or
    Burka—applies, but there is little daylight between them. BNA
    directs consideration of “a variety of factors” to determine
    whether something is an agency record, including the control
    factor that Burka explicates. 
    Id. at 1490
    . Our cases recognize
    that the Burka factors are not an inflexible algorithm. See
    Judicial Watch II, 726 F.3d at 220 (acknowledging
    “considerable indeterminacy” of the Burka test); see also
    Cause of Action v. Nat’l Archives & Recs. Admin., 
    753 F.3d 210
    , 212–13 (D.C. Cir. 2014) (noting that the factors originated
    in an opinion vacated by the Supreme Court). 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. Consumer
    Fed’n, 
    455 F.3d at 287
    . Here, the agencies’ retention and
    history. Cf. Cause of Action Br. 5 (“The use of an Internet browser
    to visit a website entails the automatic creation … of various pieces
    of information.”).
    8
    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.
    We first consider the intent of the agencies to retain or
    relinquish control over the internet browsing histories, an
    inquiry that focuses on the agencies’ policies and actions, not
    the subjective intent of the employees who created the
    document. See Judicial Watch, Inc. v. Fed. Hous. Fin. Agency
    (“Judicial Watch I”), 
    646 F.3d 924
    , 927 (D.C. Cir. 2011); see
    also Tax Analysts, 
    492 U.S. at 147
    –48 (rejecting conceptions
    of FOIA that “make[] the determination of ‘agency records’
    turn on the intent of the creator of [the] document”). Here,
    OMB and USDA generally did not control the browsing
    histories.3
    In fact, OMB and USDA have afforded their employees
    significant control over the browsing histories. At the time of
    the suit, USDA had not altered the ninety-day default retention
    window for browsing histories on Google Chrome. It had
    increased the retention window for Internet Explorer—
    showing some element of control over those histories—but
    only to forty-five days from the default of twenty. In effect, all
    browsing histories would be deleted within a few months. And
    with 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
    3
    Several of our cases consider whether an agency has relinquished
    control to an entity external to the agency. See, e.g., Burka, 
    87 F.3d at 515
     (finding the agency intended to retain control over records in
    part because it prohibited a contractor from disclosing them). That
    situation is not presented here, however, because the question of
    control over the browsing histories pertains to the agencies’ internal
    policies.
    9
    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. J.A. 64
    (declaration of USDA Information Discovery and Litigation
    Support Program Manager Jeng Mao).
    OMB had similar practices. It modestly increased the
    automatic retention window for some browsers, retained the
    default on others, and permitted “[a]n individual user … to
    delete any portion or all of [his] browsing history without
    centralized authorization.” J.A. 78 (declaration of OMB
    Director of Information and Technology Anthony McDonald).
    OMB also did not make special effort to preserve browsing
    histories when it conducted routine tasks that risked losing or
    destroying that data. In all, the agencies have made a
    substantial showing that they lacked the intent to retain the
    histories or to control whether employees deleted their
    browsing histories during the temporary retention period.
    Cause of Action maintains the agencies could have
    imposed stricter control over these browsing histories and such
    control is not undercut by the agencies’ decisions to allow
    employees to delete their histories or to permit automatic
    deletions. Mere authority to control, however, is not enough.
    The relevant consideration is how much control the agencies
    actually asserted over the documents at issue. See BNA, 
    742 F.2d at 1494
    –95 (“[B]oth [agencies] permit their employees to
    dispose of these [materials] at their discretion. Thus, the
    agencies have not sought to exercise any institutional control
    over [those] documents, although they could do so under the
    applicable statute and regulations.”). The agencies lacked the
    requisite intent to retain and to control the browsing histories.
    When assessing whether a document is an agency record,
    we also consider the agency’s ability to use and dispose of the
    requested documents. OMB and USDA both restricted official
    10
    access to an employee’s browsing history. For instance, neither
    agency could remotely monitor or collect an employee’s
    browsing history on a mobile device. And OMB staff lacked
    access to other employees’ browsing histories unless the staff
    were at the user’s workstation, were able to sign in virtually
    with the assistance of the user, or had approval from OMB’s
    Office of the General Counsel to access the histories in
    connection with an investigation into malfeasance. Similarly,
    USDA confirmed it accessed its employees’ browsing histories
    only when misconduct was suspected or pursuant to an
    information technology help request from the individual.
    Many of these constraints on access to browsing histories
    were self-imposed, and the agencies likely could have allowed
    more liberal official access to browsing histories. But that is of
    limited significance in the circumstances of this case because
    “FOIA is only directed at requiring agencies to disclose those
    ‘agency records’ for which they have chosen to retain
    possession or control.” Kissinger v. Reps. Comm. for Freedom
    of the Press, 
    445 U.S. 136
    , 151–52 (1980).
    In addition to considering limitations on the agency’s
    ability to use a document, we also consider as a factor the extent
    to which the agency actually used the requested document.
    This inquiry considers whether the document has some
    connection to agency decisionmaking because personnel have
    read or relied upon it. Actual use is often “‘the decisive factor’”
    when determining whether a requested document is an agency
    record. Judicial Watch I, 
    646 F.3d at 927
     (quoting Consumer
    Fed’n, 
    455 F.3d at 288
    ); see also Gallant v. NLRB, 
    26 F.3d 168
    , 172 (D.C. Cir. 1994) (deciding a case primarily based on
    “[t]he actual use of the correspondence, … and other
    employees’ lack of reliance on the correspondence to carry out
    the business of the agency”); BNA, 
    742 F.2d at 1490
     (similar).
    OMB and USDA did not use the officials’ browsing
    histories for any purpose, much less a purpose connected to
    11
    agency decisionmaking. See Judicial Watch I, 
    646 F.3d at 927
    –
    28.
    Cause of Action 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. Cause of Action Br. 28. 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. See Judicial Watch I, 
    646 F.3d at 928
     (“Although
    there is no doubt that the FHFA could consult the requested
    records as it conducts its business, the problem for Judicial
    Watch is that no one from the FHFA has done so.”). Moreover,
    this kind of speculation about who might have accessed the
    browsing histories does not defeat summary judgment. See,
    e.g., Morris v. McCarthy, 
    825 F.3d 658
    , 674 (D.C. Cir. 2016).
    Cause of Action additionally argues that the district court
    erred by considering only how the agencies used the browsing
    histories, rather than how the officials used their browsing
    histories, about which there is little information in the record.
    The district court, however, was not required to consider the
    officials’ use. The “use” factor refers generally to “the extent
    to which agency personnel have read or relied upon the
    document.” Burka, 
    87 F.3d at 515
     (emphasis added). And the
    “use of the documents by employees other than the author is an
    important consideration.” BNA, 
    742 F.2d at 1493
    ; see also
    Gallant, 
    26 F.3d at 172
    .
    The declarations from OMB and USDA that their
    personnel never read or relied on the browsing histories for any
    reason are sufficient. It was not necessary for the agencies to
    rule out use of the browsing histories by the officials. See, e.g.,
    BNA, 
    742 F.2d at 1495
    –96 (describing appointment calendars
    that were used by the creators of the calendars but nonetheless
    held not to be agency records). Moreover, Cause of Action has
    12
    not offered even a plausible use to which the officials might
    have put their browsing histories that would be relevant to
    whether the histories are agency records. Individuals generally
    use their browsing histories for convenience, often to facilitate
    revisiting particular webpages. But documents that employees
    use solely as a matter of convenience are ordinarily not agency
    records.4 See, e.g., id.; see also Consumer Fed’n, 
    455 F.3d at 291
    . Indeed, Cause of Action largely conceded the use factor
    at oral argument. Oral Arg. Tr. 3:20–21 (“[T]hree of the four
    Burka factors cut strongly in favor of agency control.”). That
    the agencies did not actually use the browsing histories for any
    purpose weighs heavily against a finding that they are agency
    records.
    Finally, we consider “the degree to which the document
    was integrated into the agency’s record system or files.” Burka,
    
    87 F.3d at 515
     (cleaned up). This factor also favors the
    agencies. As Cause of Action points out, 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. When
    4
    It follows that the district court did not abuse its discretion by
    refusing to authorize discovery. See Stewart v. Evans, 
    351 F.3d 1239
    ,
    1245 (D.C. Cir. 2003) (reviewing a district court’s denial of
    discovery for abuse of discretion). “Discovery in FOIA is rare.”
    Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 
    473 F.3d 312
    ,
    318 (D.C. Cir. 2006) (cleaned up). “[S]ummary judgment may be
    granted on the basis of agency affidavits if they contain reasonable
    specificity of detail rather than merely conclusory statements, and if
    they are not called into question by contradictory evidence in the
    record or by evidence of agency bad faith.” Judicial Watch II, 726
    F.3d at 215 (cleaned up). The affidavits from the agencies’
    information specialists indicated that browsing histories are
    primarily used as a convenience, and nothing in the record calls this
    into question.
    13
    analyzing control for the purposes of FOIA, we consider the
    extent to which the document is integrated into the agency’s
    record system. See Judicial Watch II, 726 F.3d at 220.
    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. See J.A. 78 (explaining that OMB “has
    not integrated this data into its records management system”);
    see also J.A. 64 (“[T]he USDA neither directly collects
    browser histories nor stores them in any centralized location in
    the ordinary course of business.”). 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. Cf. Judicial Watch I, 
    646 F.3d at 928
     (noting
    that when “a document [is] created by a third party,” and “none
    of [the agency’s] employees have read” it, “the degree [of
    integration] is none at all”).
    ***
    In light of the foregoing, we hold that the internet browsing
    histories requested by Cause of Action are not agency records
    subject to disclosure under FOIA. The judgment of the district
    court is thus
    Affirmed.