Elec. Privacy Info. Ctr. v. Nat'l Sec. Comm'n on Artificial Intelligence

466 F.Supp.3d 100

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,

v.NATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE, et al., Defendants.

Case No. 1:19-cv-02906 (TNM)

United States District Court, District of Columbia.

Signed June 1, 2020

Marc Rotenberg, John L. Davisson, Electronic Privacy Information Center, Washington, DC, for Plaintiff.

Carol Federighi, Gary Daniel Feldon, United States Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

The Roman god Janus famously has two faces. One looks backward, toward the past; the other looks forward, toward the future. Mythologists understand his two-faced depiction as complementary, not contradictory.¹ It means that every beginning has an ending, every ending a beginning. Like a doorway, Janus looks both ways.

So, too, with our Nation's open government laws. In general, the Freedom of Information Act ("FOIA") is backward looking, requiring agencies to disclose historical documents kept by the agency upon request from a private party. Under the Federal Advisory Committee Act ("FACA"), certain federal advisory bodies are subject to forward-looking publication requirements, such as giving notice of their meetings, opening them to the public, and proactively making their records publicly available. But can the same body be subject to both laws?

The Court previously held that the National Security Commission on Artificial Intelligence is an agency subject to FOIA. EPIC v. Nat'l Sec. Comm'n on Artificial Intelligence ("NSCAI "), 419 F. Supp. 3d 82, 83 (D.D.C. 2019). Given that holding, the Commission now argues that it cannot possibly also be subject to FACA's forward-looking disclosure obligations. Today, the Court holds that, like Janus, the Commission does indeed have two faces, and that Congress obligated it to comply with FACA as well as FOIA.

The Electronic Privacy Information Center ("EPIC") sued to enforce the Commission's obligations under both FOIA and FACA. The Court denied the Government's motion to dismiss the FOIA claims. Id. The Government now moves to dismiss EPIC's FACA claims and its related claims under the Administrative Procedure Act ("APA"). EPIC moves for summary judgment on these counts. While the Court will dismiss the APA claims for lack of jurisdiction, it will grant summary judgment for EPIC on its FACA claims.

I.

The Court's previous opinion provides background on the Commission and EPIC's suit. See NSCAI , 419 F. Supp. 3d at 83–85. A quick refresher is in order.

Two years ago, Congress "established in the executive branch an independent Commission to review advances in artificial intelligence, related machine learning developments, and associated technologies." John S. McCain National Defense Authorization Act for Fiscal Year 2019 ("2019 NDAA"), Pub. L. No. 115-232, § 1051(a)(1), 132 Stat. 1636, 1962 (2018). The Commission is "a temporary organization" under 5 U.S.C. § 3161. Id. § 1051(a)(2). Its 15 members are "appointed for the life of the Commission" and are "Federal employees." Id. § 1051(a)(4)(A), (6)–(7).

Congress instructed the Commission to "consider the methods and means necessary to advance the development of artificial intelligence ... to comprehensively address the national security and defense needs of the United States." Id. § 1051(b)(1). The Commission must report its findings and recommendations to the President and Congress. Id. § 1051(c)(1).

The Commission was originally set to end this October, but Congress recently extended its life by a year. See National Defense Authorization Act for Fiscal Year 2020 ("2020 NDAA"), Pub. L. No. 116-92, § 1735(a), 133 Stat. 1198, 1819 (2019). Its next interim report is due by this December and a final report is due next March. Id. § 1735(c)(2)–(3).

From its inception, the Commission "has operated almost entirely in secret." Compl. ¶ 59, ECF No. 1. It has held several meetings "behind closed doors" and "has failed to publish or disclose any notices, agendas, minutes, or materials for those meetings." Id. ¶¶ 38, 59.

Last September, EPIC sent a request to the Commission, invoking FOIA and section 10 of FACA, 5 U.S.C. app. 2. Pl.’s Mot. Exs. at 31,² ECF No. 31-4. Under FACA, it sought "[c]ontemporaneous access to, and advance Federal Register notice of, all meetings" of the Commission "and any subcomponent thereof." Id. (citing 5 U.S.C. app. 2 § 10(a) ). It also asked for "[c]opies of all ‘records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda[s], or other documents which were made available to or prepared for or by’ " the Commission "and/or any subcomponent thereof." Id. (quoting 5 U.S.C. app. 2 § 10(b) ). The Commission acknowledged the request but did not otherwise respond. Id. at 34.

Two weeks later, EPIC sued. It brought claims under FACA (Counts I and IV), the APA (Counts II, III, and V), and FOIA (Counts VI, VII, and VIII). Compl. ¶¶ 112–63. It simultaneously moved for a preliminary injunction on its FOIA claims. Mot. for Prelim. Inj. at 1, ECF No. 4. The Court denied the motion, finding that EPIC had failed to show irreparable harm. Tr. of Prelim. Inj. Hr'g at 46–47, ECF No. 22.

The Government then moved to dismiss EPIC's FOIA claims, mainly arguing that the Commission is not an "agency" subject to FOIA, see 5 U.S.C. § 552(f)(1). The Court rejected that argument. NSCAI , 419 F. Supp. 3d at 83. The Commission has since begun producing records under FOIA. Joint Status Report at 2, ECF No. 34.

The Government now moves to dismiss EPIC's FACA and APA claims. Defs.’ Mot. at 1, ECF No. 28. These claims are linked, since the APA claims hinge on alleged violations of FACA. Counts II and III assert that the Commission's failure to give notice of its meetings and to open them to the public, see 5 U.S.C. app. 2 § 10(a), violates the APA. Compl. ¶¶ 122, 129. Count V claims that the Commission's failure to make its records publicly available, see 5 U.S.C. app. 2 § 10(b), likewise violates the APA. Compl. ¶ 142. All three counts seek injunctive relief under the APA. Id. ¶¶ 125, 133, 145.

In Counts I and IV, EPIC invokes FACA and the Mandamus Act, 28 U.S.C. § 1361. Like the APA claims, these counts focus on two sets of alleged FACA violations: (1) the Commission's failure to give notice of its meetings and to open them to the public; and (2) the Commission's failure to make its records publicly available. Id. ¶¶ 115, 136. EPIC seeks writs of mandamus compelling the Commission to comply with FACA. Id. ¶¶ 118, 139.

EPIC responds to the Government's motion by moving for summary judgment on the FACA and APA claims. Pl.’s Mot. at 1, ECF No. 31. Both motions are ripe for disposition.

II.

The Government's motion to dismiss invokes Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defs.’ Mot. at 1. To survive a Rule 12(b)(1) motion, a plaintiff must establish the Court's jurisdiction over its claims. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Court must "assume the truth of all material factual allegations in the complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged." Am. Nat'l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011) (cleaned up).

To defeat a Rule 12(b)(6) motion, a complaint must "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court must "treat the complaint's factual allegations as true and must grant the plaintiff[ ] the benefit of all inferences that can be derived from the facts alleged." L. Xia v. Tillerson , 865 F.3d 643, 649 (D.C. Cir. 2017) (cleaned up). But the Court need not credit legal conclusions couched as factual allegations. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

Summary judgment for EPIC is appropriate if it shows that "there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law" and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must view the evidence "in the light most favorable to the non-moving party." Brubaker v. Metro. Life Ins. Co. , 482 F.3d 586, 588 (D.C. Cir. 2007).

III.

A.

The heart of the dispute here is whether the Commission is an "advisory committee" subject to FACA. But before resolving that, the Court must address some threshold issues.

To start, the Court will dismiss EPIC's APA claims for lack of jurisdiction. "Absent a waiver of sovereign immunity, the Federal Government is immune from suit." Loeffler v. Frank , 486 U.S. 549, 554, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988). The APA waives sovereign immunity when a party seeks relief against an "agency," as defined in 5 U.S.C. § 701(b)(1). See 5 U.S.C. § 702 ; Trudeau v. FTC , 456 F.3d 178, 187 & n.13 (D.C. Cir. 2006). If an entity is not an "agency" under § 701(b)(1), the waiver does not apply and the Court lacks jurisdiction over any APA claims against that entity. Trudeau , 456 F.3d at 187 & n.13 ; see FDIC v. Meyer , 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) ("Sovereign immunity is jurisdictional in nature."). So the Court must first determine whether the Commission is an "agency" under § 701(b)(1). See Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 98, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (affirming "the necessity of determining jurisdiction before proceeding to the merits").

Both parties assume the Court's previous opinion answered this question in the affirmative. See Defs.’ Mem. in Supp. of Mot. to Dismiss ("Defs.’ Mem.") at 14, 16 n.2, ECF No. 28-1; Pl.’s Mem. in Supp. of Mot. for Summ. J. ("Pl.’s Mem.") at 28, ECF No. 31-1. But they are...