Cause of Action Institute v. OMB
10f4th849
D.C. Cir.2021Background
- Cause of Action Institute requested ~six months of internet browsing histories for four senior officials (OMB Director John M. Mulvaney, USDA Secretary Sonny Perdue, and two communications directors) under FOIA.
- USDA denied the request, saying the browsing histories were not integrated into agency records and the agency lacked sufficient control; OMB received but did not process the request. Cause of Action sued both agencies.
- The district court applied the Burka control factors and granted summary judgment to the agencies, finding that agency personnel did not read or rely on the browsing histories and that the histories were not agency records; the court also denied discovery into officials’ use of the histories.
- On appeal the court held that whether materials are “agency records” goes to the merits (remedial authority), not subject-matter jurisdiction, and reviewed de novo whether the browsing histories are agency records.
- The court found agencies allowed employees to delete histories, had short/temporary retention windows, did not integrate histories into records systems, and never used the histories for agency decisionmaking—facts that weighed against “control.”
- Holding: browsing histories are not agency records subject to FOIA; district court judgment affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether “agency record” is jurisdictional or goes to the merits | Issue goes to merits (court may order production) | Same (parties did not contest); agencies contended remedial framing is proper | Goes to merits/remedial authority, not subject-matter jurisdiction |
| Whether browsing histories are “agency records” under FOIA | Histories are agency-created/held records and must be disclosed | Agencies lacked requisite control: employees could delete, short retention, limited access, not integrated, never used | Not agency records; FOIA disclosure not required |
| Whether agency use/readership supports record status | Implied access or possible review establishes agency control | Actual use by agency personnel is required and none occurred | Actual use is decisive; no agency use, so weighs against record status |
| Whether district court abused discretion by denying discovery | Sought discovery into officials’ use to show control/use | Agencies relied on declarations showing no use; discovery unnecessary | Denial not an abuse of discretion; affidavits were sufficiently detailed |
Key Cases Cited
- Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d 508 (D.C. Cir. 1996) (articulating control factors for whether a document is an agency record)
- Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208 (D.C. Cir. 2013) (definition of “agency records” requires creation/obtaining and agency control at time of request)
- Consumer Fed’n of Am. v. Dep’t of Agric., 455 F.3d 283 (D.C. Cir. 2006) (review de novo whether documents are agency records)
- Bureau of Nat’l Affairs, Inc. v. DOJ, 742 F.2d 1484 (D.C. Cir. 1984) (totality-of-the-circumstances approach to agency record determination)
- Judicial Watch, Inc. v. Fed. Hous. Fin. Agency, 646 F.3d 924 (D.C. Cir. 2011) (actual use by agency personnel often dispositive)
- DOJ v. Tax Analysts, 492 U.S. 136 (1989) (burden is on agency to show materials are not agency records/are properly withheld)
- Kissinger v. Reps. Comm. for Freedom of the Press, 445 U.S. 136 (1980) (FOIA directed at records an agency has chosen to retain/control)
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (distinguishing subject-matter jurisdiction from merits/remedial authority)