Cause of Action Institute Files Appeal with D.C. Circuit to Secure FOIA Access to Internet Browsing History Records

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.

# # #

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.

 

# # #

Recent FOIA Exemption 4 decision highlights problems with SCOTUS’s holding in Argus Leader

Earlier this year, in Food Marketing Institute v. Argus Leader, the Supreme Court radically altered the scope of Exemption 4 under the Freedom of Information Act (“FOIA”).  Exemption 4 protects from disclosure “trade secrets” and “commercial or financial information obtained from a person [that is either] privileged or confidential.”  At issue in Argus Leader was the precise meaning of the term “confidential.”  Rather than accept the long-standing “competitive harm” standard developed by the D.C. Circuit nearly forty years ago, the Supreme Court instead held that “confidential” meant anything “customarily and actually treated as private by its owner.”  As Cause of Action Institute warned at the time, that “cramped reading” of Exemption 4 “failed to grapple with the historical and contextual meaning” of “confidential” and would “make it more difficult for the media and government-transparency groups to conduct oversight of the often-murky nexus between business and government.”

Learn More

USDA Adopts CoA Institute’s Recommendations for Improved FOIA Regulations

The Department of Agriculture finalized a rule today implementing revised Freedom of Information Act (“FOIA”) regulations that incorporates important revisions proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted to the agency last year.  These changes are a small, but important, step towards more transparent government and proper administration of the FOIA. Learn More

NASA Adopts CoA Institute’s Recommendations to Improve Revised FOIA Regulations

The National Aeronautics and Space Administration (“NASA”) finalized a rule last week to implement revised Freedom of Information Act (“FOIA”) regulations.  That final rule incorporates important revisions proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted to the agency in May 2019.  CoA Institute’s comment recommended improvements to several aspects of NASA’s proposed regulations that were inconsistent with current statutory guidelines regarding fee reduction classifications and the proper scope of searches for agency records.  CoA Institute also recommended that NASA add a provision to implement the  “foreseeable harm” standard—a new statutory requirement that CoA Institute has been investigating government-wide.  These changes are a small, but important, step towards more transparent government and proper administration of the FOIA. Learn More

CoA Institute Sues White House Office of Management and Budget over Refusal to Update Outdated FOIA Fee Guidelines

Cause of Action Institute (“CoA Institute”) filed a lawsuit yesterday against the White House Office of Management and Budget (“OMB”), continuing the parties’ longstanding feud over the agency’s failure to update thirty-year-old guidelines for the adjudication of fee issues under the Freedom of Information Act (“FOIA”).  In June 2016, CoA Institute submitted a petition for rulemaking to OMB asking it to revise the government-wide 1987 Uniform Freedom of Information Act Fee Schedule and GuidelinesAfter CoA Institute filed suit to compel a response, OMB denied the petition, arguing incorrectly that no agency subject to the FOIA is “currently relying” on outdated or statutorily superseded guidance.  The new lawsuit seeks judicial review of that denial. Learn More

Cause of Action Sues Commerce Department for Failing to Release Section 232 Uranium Report

Washington, D.C. (Sept. 10, 2019) – Cause of Action Institute (CoA Institute) has stepped up its ongoing battle with the Department of Commerce (Commerce) by suing the agency for failing to respond to its Freedom of Information Act (FOIA) requests seeking access to the agency’s final report to the President regarding its Section 232 investigation into the “Effect of Imports of Uranium on the National Security” and the Department of Defense’s response letter to that report. Learn More

Investigation Update: The VA continues to subject certain FOIA requests to “sensitive review,” but the agency is keeping records about the practice secret

Over the past year, Cause of Action Institute (“CoA Institute”) has been investigating the Department of Veterans Affairs for its continued politicization (here, here, and here) of the Freedom of Information Act (“FOIA”).  That politicization takes the form of “sensitive review,” which refers generally to the practice of giving certain FOIA requests extra scrutiny.  Sensitive review usually entails an additional layer of review or “consultation” with interested parties before potentially embarrassing or politically sensitive records are released to the public.  At its best, it almost always causes delay.  At its worst, it leads to intentionally inadequate searches, politicized document review, improper redaction, and incomplete disclosure. Learn More