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.

Family Fishermen Move to Block Industry-Killing At-Sea Monitoring Rule

Herring Fishermen are Fighting Burdensome Regulation, COVID-19, and New, Unlawful Monitoring Requirements to Stay Afloat

Arlington, VA (June 8, 2020) – Cause of Action Institute (CoA Institute) today filed a motion for summary judgement on behalf of a group of New Jersey fishermen, asking a D.C. Federal Court to vacate job-killing fisheries regulations called the “Omnibus Amendment.” CoA Institute filed suit in February to challenge the industry-killing rule, which requires certain boats in the Atlantic herring fishery to carry “at-sea monitors” at their own cost.

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OMB Publishes Proposed Revisions to Outdated FOIA Fee Guidelines Following CoA Institute Lawsuit

The White House Office of Management and Budget (“OMB”) published a notice of proposed revisions to its Uniform Freedom of Information Act Fee Schedule and Guidelines in today’s issue of the Federal Register.  OMB first published the guidelines, which are binding on all agencies subject to the Freedom of Information Act (“FOIA”), over thirty-years ago.  They have never been updated, despite repeated requests from the transparency community, the FOIA Federal Advisory Committee, and the Archivist of the United States.  The much-anticipated revisions aim to improve FOIA administration and ensure more equitable resolution of fee issues across the government.  OMB’s notice comes amid a lawsuit filed by Cause of Action Institute (“CoA Institute”) to force such an update.

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Cause of Action Institute Challenges Commerce’s Withholding of Section 232 Uranium Report, Using Policy and Practice of Deferring to White House Disclosure Directives

Last year, Cause of Action Institute (“CoA Institute”) stepped up its ongoing battle with the Department of Commerce (“Commerce”) over disclosure of Section 232 secretarial reports by filing a lawsuit against the agency for failure to respond to Freedom of Information Act (“FOIA”) requests seeking access to a final report concerning the national-security effects of uranium imports.  This past week, CoA Institute filed its motion for summary judgment, laying out the case for Commerce’s failure to meet its FOIA obligations and exposing the infirmities of the government’s privilege claims.

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Family Fishermen Challenge Illegal, Industry-Killing At-Sea Monitoring Rule from Department of Commerce

Arlington, VA (Feb. 19, 2020) – Cause of Action Institute (“CoA Institute”) today filed a lawsuit on behalf of a group of New Jersey family fishermen to block a new regulation that would force them to pay for third-party “at-sea monitors.”  The industry-killing rule—which was designed by the New England Fishery Management Council and promulgated by the National Oceanic and Atmospheric Administration and U.S. Department of Commerce—will require certain boats in the Atlantic herring fishery to carry “at-sea monitors” and at their own cost. Learn More

Commerce Department Ignores Congressional Mandate to Release Auto Tariffs Report, Citing New OLC Opinion on Executive Privilege

Last year, Cause of Action Institute (“CoA Institute”) filed two Freedom of Information Act (“FOIA”) requests for a copy of the Secretary of Commerce’s final report to the President under Section 232 of the Trade Expansion Act of 1962 regarding the national security impacts of the importation of automobiles.  That report, which must be prepared prior to the imposition of tariffs, is required by law to be published in the Federal Register, subject only to redaction for classified and proprietary information.  After Commerce failed to publish the report, and refused to release it under the FOIA, we filed a lawsuit to compel disclosure. Learn More

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.

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