Elec. Privacy Info. Ctr. v. U.S. Dep't of Commerce
356 F. Supp. 3d 85
D.C. Cir.2019Background
- EPIC sued the Department of Commerce and the Census Bureau under the APA and Declaratory Judgment Act, challenging the failure to conduct, review, and (if practicable) publish Privacy Impact Assessments (PIAs) addressing the decision to add a citizenship question to the 2020 Census.
- Secretary Wilbur Ross announced the decision to include a citizenship question on March 26, 2018; EPIC contends PIAs were required before that announcement. Defendants concede PIAs addressing citizenship data are required but argue timing differs.
- The E-Government Act requires agencies to conduct and, if practicable, publish PIAs before "initiating a new collection of information," with "collection of information" statutorily defined to include obtaining, soliciting, or requiring disclosures from ten or more persons.
- The Census Bureau had existing PIAs for decennial IT systems (CEN08, CEN21, CEN05, CEN11, CEN13, CEN18), some updated in 2018; those PIAs largely did not analyze citizenship-data collection specifically.
- The Bureau had not yet begun soliciting or obtaining citizenship data (mailing of questionnaires was scheduled to begin January 2020 and printing/addressing between June 2019–April 2020); defendants argued "initiate" means commencing an act of obtaining/soliciting/requiring disclosure.
- EPIC moved for a preliminary injunction to block implementation/ initiation of the citizenship-question collection; the court denied the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the E‑Government Act required a PIA before Secretary Ross's March 26, 2018 decision to add a citizenship question | The statutory phrase "before initiating a new collection of information" requires agencies to prepare and publish PIAs once they decide to collect information (i.e., at the point of a final decision), not only when data collection actually begins | "Initiating" means beginning the act of obtaining, soliciting, or requiring disclosure of information; a PIA is required before those actions (e.g., mailing questionnaires), not merely upon a decision | Court held "initiating" requires commencement of at least one act of obtaining/soliciting/requiring disclosure; no PIA was required before the March 26 decision, so EPIC unlikely to succeed on the merits |
| Whether OMB/PRA regulatory definitions expand "collection of information" to include plans/instruments such that a PIA was required upon announcing the decision | EPIC relied on 5 C.F.R. §1320.3(c) to argue a "collection" can be a plan or instrument and thus was initiated by the announcement | Defendants: OMB regulation applies only within the PRA regulatory context and cannot be imported wholesale into the E‑Government Act; even a plan is not "initiated" until put into action | Court held the OMB regulatory, context‑specific definitions do not alter §208(b)'s plain meaning; initiating a plan means commencing it, not merely announcing it |
| Whether the E‑Government Act's purpose requires PIAs earlier to influence decisionmaking (analogy to NEPA) | EPIC argued PIAs should occur early to affect agency decisionmaking and avoid rubber‑stamp assessments | Defendants: §208 focuses on ensuring protections when agencies "implement" electronic government; unlike NEPA, §208 lacks textual timing requirements tied to decisionmaking | Court held the text controls; §208 is aimed at protections when collections are implemented, so timing before actual collection is not required by the statute |
| Irreparable harm supporting a preliminary injunction | EPIC asserted informational injury to members, that privacy considerations were not considered before the decision, and that members could suffer privacy harms if data were collected | Defendants: any collection was not imminent or certain (questionnaires not mailed until Jan 2020 and litigation had produced an injunction); informational injury would not be redressed by the requested relief | Court held EPIC failed to show imminent, certain irreparable harm; informational injury not redressable by enjoining collection and printing/mailing was not imminent |
Key Cases Cited
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (standard for preliminary injunctions requires likelihood of success and irreparable harm)
- Nken v. Holder, 556 U.S. 418 (2009) (balance of equities and public interest merge when government is opposing party)
- EPIC v. Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371 (D.C. Cir. 2017) (discussed scope/timing of PIA obligation)
- Perrin v. United States, 444 U.S. 37 (1979) (ordinary meaning of statutory words governs absent definition)
- New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019) (interpretation of ordinary meaning of statutory terms)
- Kloeckner v. Solis, 568 U.S. 41 (2012) (text controls statutory interpretation even when weighing statutory purpose)
- Wisconsin Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985) (irreparable harm for preliminary relief requires clear and present need)