Judge Tanya Chutkan of the U.S. District Court for the District of Columbia ruled last week that the National Oceanic and Atmospheric Administration (“NOAA”) must conduct searches of the private accounts and devices of members of the New England Fishery Management Council for records related to the Council’s approval of the Industry-Funded Monitoring Omnibus Amendment.  The Omnibus Amendment is the controversial regulation at issue in Loper Bright Enterprises v. Raimondo, an important case in which the Supreme Court will reconsider the future of Chevron deference next year.

In December 2018, NOAA Regional Administrator Michael Pentony alerted the New England Council that the agency had approved the Omnibus Amendment, which imposes a requirement on certain herring fishermen to pay for third-party at-sea monitors to ride their boats and watch them fish.  Mr. Pentony’s letter was not readily available to the public at the time of its issuance.  That secrecy was alarming to many because the economic impact of industry-funded monitoring is expected to be devastating according to the government’s own estimates—roughly $710 per day with a possible 20% reduction in annual revenue.

In order to learn more about the Council’s reception of the Pentony Letter, as well as its approval of the industry-funding requirement, Cause of Action Institute (“CoA Institute”) filed a Freedom of Information Act (“FOIA”) request seeking various categories of records, including correspondence exchanged between Council members.  Ultimately, CoA Institute filed a lawsuit after NOAA failed to provide a timely final response.  Over the course of the next two years, the government conducted its search and produced some records but steadfastly refused to direct members of the New England Council to conduct comprehensive searches of their private email accounts and devices.

Interestingly, NOAA does not provide Council members with official email accounts or devices; these individuals instead use state government or personal accounts to conduct Council business, unless they are also employed by NOAA as federal bureaucrats.  Relying on a legal directive issued in 2013, NOAA argued that most records created by Council members were not under “agency control,” and therefore not subject to the FOIA.  The agency only allowed a single narrow exception for records “specifically discussed or disseminated at a Council meeting.”  CoA Institute, by contrast, maintained that all records reflecting Council business sent or received by individual members were subject to disclosure, regardless of whether they were stored in a government records system.  To rule otherwise could allow NOAA and the New England Council to avoid transparency all together.

Judge Chutkan agreed.  Because Council members—regardless of their employment status, or their lack of a government-issued email account or cell phone—act on behalf of the Council when conducting official duties, their correspondence must be available to the public.  As the judge explained in her opinion, “if an agency could ‘deprive the citizens of their right to know what [it] is up to by the simple expedience of maintaining [internal] emails on an account in another domain, that purpose [of FOIA] is hardly served.’”

The implications of this case for proper implementation of the FOIA are profound.  CoA Institute’s win is an affirmation of the principle that the location of records (i.e., on a personal email account) is not dispositive to whether they are subject to disclosure.  Judge Chutkan’s decision also confirms that non-federal employees involved in the conduct of government business are still capable of creating agency records.  NOAA incorrectly tried to narrow the reach of the FOIA by relying on defective guidance that ignored these principles.

Ryan P. Mulvey is counsel at Cause of Action Institute.  He is lead counsel in Cause of Action Institute v. National Oceanic and Atmospheric Administration, No. 19-1927 (D.D.C.).