Cause of Action Institute v. OMB

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.