Cause of Action Inst. v. Office of Mgmt. & Budget

10 F.4th 849

CAUSE OF ACTION INSTITUTE, Appellant

v.OFFICE OF MANAGEMENT AND BUDGET and United States Department of Agriculture, Appellees

No. 20-5006

United States Court of Appeals, District of Columbia Circuit.

Argued December 2, 2020

Decided August 20, 2021

Ryan P. Mulvey argued the cause for appellant. With him on the briefs was R. James Valvo III.

Dennis Fan, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Ethan P. Davis, Acting Assistant Attorney General, and Mark B. Stern, Attorney.

Jeffrey L. Light was on the brief for amicus curiae Property of the People, Inc., in support of neither party.

Before: Srinivasan, Chief Judge, Rao, Circuit Judge, and Sentelle, Senior Circuit Judge.

Rao, Circuit Judge:

Through the Freedom of Information Act ("FOIA"), Cause of Action Institute sought the release of the internet browsing histories of several officials, including the Director of the Office of Management and Budget and the Secretary of the Department of Agriculture. The district court held these browsing histories are not agency records, so they are not subject to disclosure under FOIA. We agree and thus affirm.

I.

Cause of Action is a nonprofit organization committed to government transparency and openness. It submitted a request for the internet browsing histories of several senior agency officials over a specified period of approximately six months, asserting that the histories were subject to disclosure under FOIA. 5 U.S.C. § 552(a)(3)(A) ; id. § 552(a)(4)(B). Browsing histories record internet activity. When a person navigates to a specific webpage, the internet browser, such as Google Chrome or Internet Explorer, records the location of that webpage. Unless this feature is disabled, the browser will maintain a history of all webpages to which a person has navigated.

Cause of Action's requests for browsing histories included two officials by name—Office of Management and Budget ("OMB") Director John Michael Mulvaney and U.S. Department of Agriculture ("USDA") Secretary Sonny Perdue—and two by position—the OMB Associate Director of Strategic Planning and Communications and the USDA Director of Communications (the "officials"). OMB acknowledged receiving Cause of Action's request, but never processed it. USDA, however, denied Cause of Action's request, explaining that the browsing histories were not integrated into its record system, and thus the Department did not have sufficient control over the browsing histories such that they constituted "agency records" within the meaning of FOIA. 5 U.S.C. § 552(a)(4)(B). USDA also denied Cause of Action's administrative appeal.

Having failed to secure the release of the browsing histories, Cause of Action brought suit against OMB and USDA in federal district court, contending the histories are agency records subject to disclosure under FOIA. The district court granted summary judgment to the agencies. Cause of Action Inst. v. OMB , 2019 WL 6052369, at *1 (D.D.C. Nov. 15, 2019). The court first determined that whether something qualifies as an agency record goes to the merits of the case, not to the court's subject matter jurisdiction. On the merits, the court considered the four factors identified in Burka v. U.S. Department of Health and Human Services , 87 F.3d 508, 515 (D.C. Cir. 1996), to determine whether an agency "controls" the requested documents to the extent required for them to constitute agency records. The district court found three of the Burka factors favored treating the browsing histories as under the agencies’ control. Nonetheless, the court held the agencies lacked the requisite control because agency personnel did not read or rely upon the browsing histories. Cause of Action , 2019 WL 6052369, at *10–11. The district court accordingly concluded the browsing histories did not qualify as agency records. The court also denied Cause of Action's request for discovery into whether and how the officials used their browsing histories. Id. at *6–8. Cause of Action timely appealed.

II.

We first consider a threshold matter, namely whether the existence of an "agency record" goes to the merits of a FOIA challenge or to our jurisdiction. The district court held that it goes to the merits. Although neither party challenges that decision, we address the question because it pertains to our jurisdictional authority, which we must consider irrespective of whether it is raised by the parties. See Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

Subject matter jurisdiction concerns "a court's power to hear a case." See Arbaugh v. Y & H Corp. , 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (cleaned up). By contrast, the merits of a dispute pertain to the remedial powers of the court, i.e., whether a party has successfully established the elements of its claim such that a court may grant relief.

FOIA authorizes "jurisdiction to enjoin the agency from withholding agency records ... improperly ... from the complainant." 5 U.S.C. § 552(a)(4)(B). Whether that provision pertains to the court's subject matter jurisdiction or merely its power to order a remedy on the merits has not been squarely addressed by this court.¹ The text and structure of FOIA, however, make clear that whether the requested materials are "agency records" goes to the merits of the dispute—the "court's authority to impose certain remedies"—rather than the court's jurisdictional power to hear the case. United States v. Philip Morris USA Inc. , 840 F.3d 844, 850 (D.C. Cir. 2016).

Section 552(a)(4)(B) plainly confers upon courts the power to order a particular remedy—"to enjoin the agency from withholding agency records ... improperly." 5 U.S.C. § 552(a)(4)(B). This text is similar to language in other statutes we have indicated go to the court's remedial authority. See Philip Morris , 840 F.3d at 851 (citing 15 U.S.C. § 378(a), which gives courts "jurisdiction to prevent and restrain violations of this chapter and to provide other appropriate injunctive or equitable relief"; and 31 U.S.C. § 5365, which provides "jurisdiction to prevent and restrain [certain] transactions by issuing appropriate orders"). Indeed, it is "commonplace" for the term "jurisdiction" to be used in the sense of "specifying the remedial powers of the court." Steel Co. , 523 U.S. at 90, 118 S.Ct. 1003 (emphasis omitted).

Understanding Section 552(a)(4)(B) to implicate a court's remedial authority, rather than jurisdiction, is also consistent with FOIA case law and general principles of subject matter jurisdiction. For instance, "[t]he party invoking federal jurisdiction bears the burden of establishing" it. Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). But in FOIA cases, "[t]he burden is on the agency to demonstrate, not the requester to disprove, that the materials sought are not ‘agency records’ or have not been ‘improperly’ ‘withheld.’ " DOJ v. Tax Analysts , 492 U.S. 136, 142 n.3, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) ; Aguiar v. DEA , 865 F.3d 730, 735 (D.C. Cir. 2017) (same). If Section 552(a)(4)(B) were interpreted as a limitation on subject matter jurisdiction, one of these principles would have to yield. We would have to either overrule our case law explaining that agencies bear the burden of demonstrating that the materials sought are not agency records, or create a class of cases where the plaintiff does not bear the burden of demonstrating subject matter jurisdiction. Instead, we follow the plain meaning of Section 552(a)(4)(B), which confers remedial authority to order the production of agency records.

Whether requested documents are "agency records" goes to the merits of the dispute, not the court's subject matter jurisdiction. Although Section 552(a)(4)(B) does not confer subject matter jurisdiction, the district court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have jurisdiction over Cause of Action's appeal from the district court's final decision under 28 U.S.C. § 1291.

III.

Turning to the central issue in the case, we consider whether the browsing histories are agency records that the agencies must disclose pursuant to FOIA. See Consumer Fed'n of Am. v. Dep't of Agric. , 455 F.3d 283, 287 (D.C. Cir. 2006) (reviewing de novo whether documents are "agency records").

FOIA limits the documents a requester may receive to those that are "agency records." 5 U.S.C. § 552(a)(4)(B). Although the term is not defined in the statute, we do not read the term literally to encompass "all documents in the possession of a FOIA-covered agency." Judicial Watch, Inc. v. U.S. Secret Serv. ("Judicial Watch II "), 726 F.3d 208, 216 (D.C. Cir. 2013). Rather, "the term ‘agency records’ extends only to those documents that an agency both (1) create[s] or obtain[s], and (2) controls ... at the time the FOIA request [was] made." Id. (cleaned up). The agencies do not dispute that they created the browsing histories at issue, so this case turns on their control of the histories.²

Factors that determine whether an agency controls a document may include: "(1) the intent of the document's creator to retain or relinquish control over the records; (2) the ability of the agency to use and dispose of the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the document; and (4) the degree to which the document was integrated into the agency's record system or files." Burka , 87 F.3d at 515 (cleaned up). The Burka factors regarding control of a document, however, must be understood as part of the ultimate question of whether a document is an agency record. This question is assessed under a "totality of the circumstances" test that "focus[es] on a variety of factors surrounding the creation, possession, control, and use of the document by an agency." Bureau of Nat'l Affairs, Inc. v. DOJ ("BNA "), 742 F.2d 1484, 1490, 1492 (D.C. Cir. 1984).

The parties dispute...