Arlington, VA (Jan. 16, 2020) – Earlier this week, Cause of Action Institute (“CoA Institute”) filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit in Cause of Action Institute v. White House Office of Management and Budget, a Freedom of Information Act (“FOIA”) lawsuit concerning access government officials’ Internet browsing histories. The appeal seeks to overturn the district court’s determination that such records are outside the scope of disclosure, even when they are created on government-issued computers in the course of official business. CoA Institute field the underlying lawsuit against the Office of Management and Budget (“OMB”) and the Department of Agriculture (“USDA”) in June 2018.
As CoA Institute Counsel Ryan Mulvey explained at the beginning of the litigation:
The taxpayer foots the bill for the government’s Internet usage; the taxpayer deserves to know whether bureaucrats are behaving as proper stewards of their online resources. . . . The public has a right to know what websites are being accessed in the course of official agency business. . . . [Internet browsing history] records reveal the sorts of resources that have influenced decision-making[.]
The most problematic aspect of the district court’s opinion concerns the application of the so-called Burka test, which is often used to determine whether records are under agency “control” and therefore available under the FOIA. Judge Reggie B. Walton held that one of the four factors of the Burka test—namely, the extent to which agency personnel have read or relied on certain records—was “decisive” in determining control, even when it is undisputed that an agency created the records in the legitimate course of agency business. Because there was no evidence suggesting that agency officials later referenced or used their browsing histories for another purpose, the court ruled against CoA Institute, even though the three remaining Burka factors were all in CoA Institute’s favor.
Unless corrected by the D.C. Circuit, Judge Walton’s opinion threatens to confuse prevailing caselaw on the application of the Burka test. Although an inquiry into how an official may have actually used certain records could be important in some instances—such as when the records originated with a third-party or were created by the employee for purely personal purposes—it is entirely out-of-place when the records at issue were created at the agency, with agency resources, and while conducting agency business. Especially in a rapidly evolving electronic age, when many records are created automatically by government information systems and perhaps infrequently used thereafter, it is vitally important to avoid an “actual use” test that could sweep swathes of agency information outside the reach of disclosure.
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Media Contact: James Valvo, james.valvo@causeofaction.org, (571) 482-4182
About Cause of Action Institute
CoA Institute is a 501(c)(3) nonprofit, nonpartisan government oversight organization that uses investigative, legal, and communications tools to educate the public about how government accountability, transparency, and the rule of law protect liberty and economic opportunity.
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