Electronic Privacy Information Center v. Presidential Advisory Commission on Election Integrity
266 F. Supp. 3d 297
D.D.C.2017Background
- President established the Presidential Advisory Commission on Election Integrity (the Commission) by Executive Order to advise on federal election registration and voting; Vice President chairs, Kobach named Vice Chair.
- Commission requested publicly available voter-roll data from all states (names, DOB, partial SSNs, voting history, etc.) and asked states to submit data via White House email or the SAFE secure FTP system.
- EPIC sued seeking a TRO/preliminary injunction to stop collection and to force deletion/disgorgement, alleging defendants failed to publish a Privacy Impact Assessment (PIA) as required by the E‑Government Act and seeking review under the APA and FACA; EPIC also asserted constitutional privacy claims for advisory-board members.
- Facts shifted during litigation: only Arkansas had uploaded data to SAFE; defendants stopped using DOD’s SAFE, repurposed a White House system (DWHIT) for uploads, and represented Arkansas data was deleted without being accessed.
- Court held EPIC has organizational/informational standing to seek disclosure of a PIA but lacks associational standing for advisory-board members; however, the court found no likelihood of success on the merits because no federal “agency” (for APA purposes) is presently involved in the collection, so APA review is unavailable; EPIC’s motion for injunctive relief was denied without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue for failure to publish a PIA under E‑Government Act | EPIC: has informational and organizational standing to compel PIA disclosure under APA; injury = denial of information needed to hold government accountable | Defs: alleged injury is generalized; statutory disclosure may not be practicable; APA/FACA may not apply | Court: EPIC has informational and organizational (PETA) standing; associational standing for advisory-board members denied |
| Whether collection triggered APA review (is there an "agency") | EPIC: Commission’s collection is agency action subject to APA review | Defs: Commission and DWHIT are EOP advisory/administrative units not exercising substantial independent authority; APA excluded | Court: No agency involvement on record; Commission and DWHIT are not agencies for APA purposes; APA review unavailable now |
| Whether EPIC likely to succeed in forcing disclosure of PIA under APA/FACA | EPIC: E‑Government Act required PIA before initiating collection; failure entitles judicial relief under APA; FACA may require disclosure of committee records | Defs: E‑Government Act has no private cause of action; FACA disclosure irrelevant absent APA jurisdiction; collection is voluntary request | Court: EPIC unlikely to succeed because APA applies only to agencies and none is implicated; FACA route also fails without APA jurisdiction |
| Irreparable harm & injunctive relief | EPIC: non‑disclosure of PIA and consolidation of voter data causes irreparable informational and privacy harms | Defs: no imminent concrete harm; data public in states; representations about de‑identification and deletion reduce risk | Held: EPIC failed to show irreparable informational injury; equities/public interest are balanced; injunction denied without prejudice |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (preliminary injunction standard requires clear showing of entitlement)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing: injury-in-fact, causation, redressability)
- Bennett v. Spear, 520 U.S. 154 (causation/redressability principles for standing)
- Friends of Animals v. Jewell, 828 F.3d 989 (informational standing analysis under statute)
- Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (increased risk of harm insufficient; injury must be certainly impending)
- Citizens for Responsibility & Ethics in Washington v. Office of Admin., 566 F.3d 219 (EOP components lacking substantial independent authority are not agencies)
- Franklin v. Massachusetts, 505 U.S. 788 (President and core EOP functions exempt from APA)
- Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440 (FACA disclosure standing)
- PETA v. USDA, 797 F.3d 1087 (organizational standing where agency omission injured programmatic activities)
- Soucie v. David, 448 F.2d 1067 (substantial independent authority test for agency status)