Elec. Privacy Info. Ctr. v. Drone Advisory Comm., 19-5238

995 F.3d 993

ELECTRONIC PRIVACY INFORMATION CENTER, Appellant

v.DRONE ADVISORY COMMITTEE, et al., Appellees

No. 19-5238

United States Court of Appeals, District of Columbia Circuit.

Argued May 12, 2020

Decided April 30, 2021

John L. Davisson argued the cause for appellant. With him on the briefs were Marc Rotenberg and Alan Butler.

Joseph F. Busa, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was Mark B. Stern, Attorney. Sarah Carroll, Attorney, entered an appearance.

Before: Henderson, Wilkins, and Katsas, Circuit Judges.

Opinion concurring in part and dissenting in part filed by Circuit Judge Wilkins.

Katsas, Circuit Judge:

The Federal Advisory Committee Act applies to any committee or subcommittee established or utilized by a federal agency to obtain advice. Section 10(b) of FACA requires a covered advisory committee to make publicly available any records prepared for or made available to it.

This case involves four subgroups of the Drone Advisory Committee (DAC), which provided advice to the Federal Aviation Administration. The subgroups—one subcommittee and three task groups—provided advice to the DAC, but never directly to the FAA. The question presented is whether section 10(b) of FACA applies to records that these subgroups created but never provided to the DAC. It turns on two subsidiary questions: (1) whether the subgroups were themselves FACA advisory committees; and (2) even if not, whether the disclosure requirement nonetheless extends to the disputed subgroup records. We answer no to both questions.

I

A

As its name suggests, FACA regulates committees that provide advice to the federal government. As relevant here, section 3(2) of FACA defines the term "advisory committee" to cover "any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof" that is "established or utilized by" the President or a federal agency "in the interest of obtaining advice or recommendations for" the President or the agency. 5 U.S.C. app. 2 § 3(2). The definition excludes committees composed entirely of federal officers or employees. Id.

FACA imposes various requirements on covered advisory committees. Each committee must have a charter specifying its purpose, duties, budget, and timeline for completing its work. 5 U.S.C. app. 2 § 9(c). The sponsoring agency must designate a federal officer or employee "to chair or attend each meeting of the advisory committee," id. § 10(e), and the committee may not "hold any meetings except at the call of, or with the advance approval of," that official, id. § 10(f). Membership of the committee must be "fairly balanced in terms of the points of view represented," id. § 5(b)(2), and the committee, in formulating "advice and recommendations" for the agency, must exercise "independent judgment" not "inappropriately influenced by the appointing authority or by any special interest," id. § 5(b)(3). The committee must open its meetings to the public, id. § 10(a); keep detailed minutes of each meeting, id. § 10(c); and make various of its records available to the public, id. § 10(b). Each committee may have "adequate staff." Id. § 5(c).

Section 10(b) of FACA imposes the public-records requirement. It provides that, subject to exemptions set forth in the Freedom of Information Act,

the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist.

5 U.S.C. app. 2 § 10(b).

FACA authorizes the Administrator of General Services to prescribe "administrative guidelines and management controls applicable to advisory committees." 5 U.S.C. app. 2 § 7(c). Under this authority, the General Services Administration has promulgated several regulations on how FACA applies to subcommittees. One provides: "In general, the requirements of the Act ... do not apply to subcommittees of advisory committees that report to a parent advisory committee and not directly to a Federal officer or agency." 41 C.F.R. § 102-3.35(a). Another states: "The creation and operation of subcommittees must be approved by the agency establishing the parent advisory committee." Id. § 102-3.35(b). Moreover, "for each advisory committee and its subcommittees," the same designated federal official must "[a]pprove or call the meeting of the advisory committee or subcommittee" and must "[a]ttend the meetings" of both. Id. § 102-3.120.

B

The FAA established the Drone Advisory Committee to obtain advice on the use of drones in the national airspace. The FAA instructed the DAC to "provide the FAA with recommendations" and to "deliberat[e]" on any proposed recommendations in "meetings that are open to the public." J.A. 72. The Deputy Administrator of the FAA became the designated federal official for the DAC.

The FAA provided for subgroups to support the DAC's activities. The "terms of reference" for the DAC—its key organic document—established a subcommittee as "Staff to Advisory Committee." J.A. 73. The DAC was required to "[d]irect the work" of the subcommittee, which was required to "[f]orward recommendations and other deliverables to the DAC for consideration." J.A. 72–73. The terms of reference also authorized the DAC to establish task groups "to develop recommendations and other documents for the Committee." J.A. 72. Each task group would address a "specific" aspect of drone policy. Id. Task-group products would either be presented to the subcommittee "for review and deliberation, then forwarded to the DAC" or would be "presented directly to the DAC." Id.

The subcommittee had its own terms of reference. They reiterated that its purpose was to "support the DAC" and "provide the staff work for the DAC," by giving "input to the DAC" for its "development of recommendations to be forwarded to the FAA." J.A. 102. The terms of reference permitted FAA personnel to "take part in" the subcommittee's deliberations. J.A. 105. But they specifically, repeatedly, and emphatically forbade the subcommittee from sending any recommendations directly to the FAA: "All must be vetted in a public DAC meeting and transmitted to the FAA upon approval by the DAC." J.A. 104; see also J.A. 106 ("nor can the [subcommittee] make recommendations directly to the FAA").

The DAC eventually created three task groups: one to assess government regulation of drones; one to assess access requirements for drones; and one to assess drone funding. As with the subcommittee, terms of reference specifically forbade the task groups from submitting recommendations "directly to the FAA." J.A. 104.

The subcommittee and task groups delivered progress reports and draft recommendations to the DAC at three of its meetings in 2017 and 2018. After extended back-and-forth between the DAC and its subgroups, the DAC adopted a final set of recommendations and presented them to the FAA. On May 29, 2018, the DAC's charter expired and it ceased to exist.

C

In March 2018, the Electronic Privacy Information Center (EPIC) requested records related to the DAC from various agency and advisory-committee officials. EPIC sought all documents "made available to or prepared for or by the DAC or any DAC subcomponent." J.A. 63 (cleaned up). After receiving no response, EPIC sued to obtain the records. It alleged that the government had violated section 10(b) of FACA by failing to disclose the records.

The government moved to dismiss EPIC's complaint, and the district court granted the motion in part and denied it in part. The court held that because the DAC was an "advisory committee" within the meaning of FACA, EPIC had stated a claim with respect to DAC documents—i.e. , documents "made available to or prepared for or by" the DAC itself. EPIC v. Drone Advisory Comm. , 369 F. Supp. 3d 27, 42, 47–49 (D.D.C. 2019) (cleaned up). But, the court held, neither the subcommittee nor any of the task groups was itself a covered advisory committee. Id. at 44–47. And section 10(b) applied only to the records of the DAC itself—not to the records of the subcommittee or the task groups. Id. at 41–43.

After the government disclosed various DAC documents, EPIC moved for entry of final judgment. The district court granted the motion, and EPIC appealed. We have jurisdiction under 28 U.S.C. § 1291, and our review is de novo, Physicians for Soc. Resp. v. Wheeler , 956 F.3d 634, 642 (D.C. Cir. 2020).

II

EPIC contends that the subcommittee and task groups were themselves advisory committees under FACA, which would make their respective records disclosable under section 10(b). This theory is inconsistent with the text of FACA, governing GSA regulations, and our precedent.

A

Section 3(2) of FACA defines what kind of groups the statute covers. In pertinent part, it provides: "The term ‘advisory committee’ means any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof" that is "established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for ... one or more agencies." 5 U.S.C. app. 2 § 3(2). This definition turns on the existence of an advisor/advisee relationship between the committee giving advice and the agency receiving it—the agency must establish or utilize the committee to obtain advice for the agency . FACA's substantive requirements confirm that advisory committees report to sponsoring agencies. For example, the charter of an advisory committee must identify the "agency or official to whom the committee reports," id. § 9(b); the records of an advisory committee must be publicly available at its offices or those of "the agency to which the advisory committee...