Cause of Action Institute files opening brief in DC Circuit appeal over definition of a “record” under the Freedom of Information Act

For decades, the Freedom of Information Act (“FOIA”) has provided the public with access to records of the Executive Branch.  Yet the definition of a “record” has never been definitively established.  To be sure, there has been a great deal of litigation over the meaning of an “agency record” (as opposed to a congressional record or a personal record). But the antecedent question of what exactly a “record” is has only recently started working its way up through the courts.  Cause of Action Institute (“CoA Institute”) filed its opening brief today in the U.S. Court of Appeals for the D.C. Circuit as part of its efforts to get some resolution to this important question.

The current debate of the definition of a “record” can be traced back to the D.C. Circuit’s 2016 decision in American Immigration Lawyers Association v. Executive Office for Immigration Review (“AILA”).  The AILA court held that agencies may not use “non-responsive” as a pseudo-exemption to withhold information within an otherwise responsive record.  Unfortunately, the court left the door open to agencies treating that same information as discrete “records.”  Because the court did not provide clarity on the actual definition of a “record,” and merely opined to the possible limits of what a “record” could be, the Department of Justice’s Office of Information Policy (“OIP”) issued guidance purporting to fill that gap.  The legality of that guidance, and its consistency with FOIA, is at the heart of CoA Institute’s appeal.

In its guidance, OIP directs agencies to apply part of the Privacy Act’s definition of a “record” when processing FOIA requests.  That definition, in relevant part, treats any “item, collection, or grouping of information” as a potential record.  Yet OIP goes further and also instructs agencies to define records on a case-by-case basis depending on the subject-matter of an individual FOIA request, as interpreted by the agency.  That sort of subjective understanding of a “record,” which could lead to divergent treatment of the same informational material across the government, or even between components of a single agency, is fatally flawed.

As CoA Institute argues in its opening brief, OIP’s definition is problematic—along with the district court’s failure to invalidate the policy—precisely because the FOIA does define a “record.”  The statutory text, as clarified by Supreme Court precedent, sets out a four-part definition that encompasses (1) any information material, (2) created or obtained by an agency, (3) within an agency’s control when a FOIA request is submitted, and (4) in the format maintained by an agency at the time of a request.  Again, this definition logically follows from the statutory text.

Even if the FOIA were ambiguous, the plain meaning of a “record,” as evidenced by common usage, clearly refers to materials that exist objectively and independent of any given FOIA request.  OIP’s guidance violates this common-sense understanding, just as it violates the well-established legal principle that a requester can only seek disclosure of existing records.  An agency cannot define a “record”—that is, bring it into existence—as part of its efforts to process a FOIA request.  Not only does this confuse a responsiveness review with efforts to search for and identify potential responsive records, but it invites abuse.  Indeed, agencies have already shown their eagerness to treat information formerly withheld as “non-responsive” as discrete records.  That makes a mockery of AILA.  Finally, the Privacy Act, which OIP’s guidance refers to as controlling in the FOIA context, is simply inapt.

Given the confusion in the district court over the correct definition of “record,” it is vital that the D.C. Circuit provide clarity to agencies and requesters alike.  CoA Institute’s argument comports with the statutory text, plain meaning, and existing FOIA caselaw.  OIP’s guidance, if it is allowed to stand, would be a huge blow to transparency and create an incentive for agencies to get even more creative in their efforts to block transparency.

Ryan P. Mulvey is Counsel at Cause of Action Institute.  He is lead counsel in Cause of Action Institute v. Department of Justice, No. 20-5182 (D.C. Cir.), the appeal discussed in this blogpost.  He may be contacted at ryan.mulvey@causeofaction.org.

Federal judge rejects DOJ’s use of attorney-client, deliberative process privileges to hide communications with the White House Counsel from public disclosure

Judge James Boasberg of the U.S. District Court for the District of Columbia yesterday granted in part Cause of Action Institute’s (“CoA Institute’s) motion for summary judgment in a Freedom of Information Act (“FOIA”) lawsuit against the Department of Justice (“DOJ”). Judge Boasberg vigorously rejected DOJ’s attempt to withhold records of communications with the White House under the attorney-client and deliberative process privileges.  CoA Institute filed its lawsuit in July 2017, after DOJ refused to produce records that would have revealed whether it was involved in implementing a controversial directive from the U.S. House of Representatives Committee on Financial Services.  The underlying request at issue, which CoA Institute submitted in May 2017, followed reports that Jeb Hensarling, Chairman of the Financial Services Committee, had directed twelve agencies—including, the Department of the Treasury and eleven other entities—to treat all records exchanged with his Committee as “congressional records” not subject to the FOIA.

Judge Boasberg’s most damning holding concerned DOJ’s misuse of Exemption 5 to redact a line from a White House email and to withhold in full an attachment—presumably the letter from Chairman Hensarling—received by several Executive Branch agencies.  As the Court explained:

Indeed, any reasonable individual would reach the same conclusion as the Court after cursorily examining the record at issue.

The sole basis of DOJ’s defense was the declaration a senior agency attorney, who claimed that the White House email reflected a “routine” sort of “consultative exchange” in which Office of Information Policy Director Melanie Pustay was asked for “advice.”  But the Court saw through this self-serving statement and explained that DOJ had failed to meet its burden in proving that the specific record at issue reflected the provision of legal services.  To rule otherwise would tend to turn any correspondence with a government attorney into privileged material.

The Court also failed to see how the withheld material contained any confidential information.  For example, the attachment to the White House email—ostensibly, a copy of the Hensarling letter—was merely one of many substantively identical letters that DOJ admitted were received across the Administration.  There was simply no agency-specific confidential information at issue.

Judge Boasberg further rejected DOJ’s use of the deliberative process to withhold the same White House communications.  Despite the government’s arguments during briefing, after reviewing the records itself, the Court determined that they contained nothing that could be construed as deliberative.

Although the court granted in part CoA Institute’s motion, it also sided with the government over the withholding of eleven pages of records exchanged between DOJ and an unidentified agency.  After reviewing those records, the Court determined that they did, in fact, reflect the agency’s decision-making processes and revealed the solicitation and provision of confidential legal advice.  Moreover, there were no reasonably segregable portions of the records that could be released to CoA Institute. Finally, the court did not resolve the parties’ dispute over the “foreseeable harm” standard that Congress introduced in the FOIA Improvement Act of 2016..

* * *

The Court has ordered DOJ to release unredacted versions of the White House communications. Once these records have been released, we will provide another update addressing their contents.

Judge Boasberg’s opinion is available here.

Ryan Mulvey is Counsel at Cause of Action Institute

 

Loader Loading...
EAD Logo Taking too long?

Reload Reload document
| Open Open in new tab

Download [526.27 KB]