Elec. Privacy Info. Ctr. v. Drone Advisory Comm.

369 F.Supp.3d 27

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,

v.DRONE ADVISORY COMMITTEE, et al., Defendants.

Civil Action No.: 18-833 (RC)

United States District Court, District of Columbia.

Signed February 25, 2019

John L. Davisson, Alan Jay Butler, Electronic Privacy Information Center, Washington, DC, for Plaintiff.

Lisa Zeidner Marcus, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

This case involves a dispute over the public transparency obligations of the Drone Advisory Committee ("DAC"), an advisory committee created by the Federal Aviation Administration ("FAA") to address the challenges associated with the integration of drones in the National Airspace System ("NAS"). Plaintiff the Electronic Privacy Information Center ("EPIC") has a particular interest in the privacy concerns posed by drones, and has engaged the FAA on that issue on multiple occasions in the past few years. In this case, EPIC alleges that the DAC, its subcommittee (the DAC Subcommittee, or "DACSC"), and three DAC task groups active between 2017 and 2018 violated the public record requirements of the Federal Advisory Committee Act ("FACA"), 5 U.S.C. App. 2, by failing to make available records of their activities pursuant to the Act. EPIC also alleges that the DACSC and DAC task groups failed to comply with FACA's open meeting requirements, by engaging in secret meetings closed to the public.

EPIC initially brought claims against the FAA, the Department of Transportation ("DOT"), FAA and DOT officials, the DAC, and the DAC's parent advisory committee, the Radio Technical Commission for Aeronautics ("RTCA") Advisory Committee, under FACA, the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. , and the Declaratory Judgment Act ("DJA"), 28 U.S.C. § 2201(a). After EPIC voluntarily dismissed its claims against the RTCA, the remaining Defendants have now moved to dismiss all claims for lack of subject matter jurisdiction or failure to state a claim. For the reasons stated below, the Court finds that it lacks subject matter jurisdiction to consider EPIC's FACA claims, APA open meetings claims, DJA claim, and APA claims against the DAC. The Court also finds that while EPIC's complaint states a cognizable APA claim as to the DAC's alleged failure to comply with its public records obligations, it fails to state a claim as to the public records obligations of the DACSC and the DAC task groups. The Court accordingly grants in part and denies in part the motion to dismiss.

II. BACKGROUND

A. Advisory Committee Transparency Obligations Under FACA

Enacted in 1972, the Federal Advisory Committee Act, Pub. L. No. 92–463, 86 Stat. 770 (codified at 5 U.S.C. App. 2), was intended to create more transparency around the multitude of advisory committees working with the executive branch. FACA defines an advisory committee as "any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof," which, inter alia , is "established or utilized by one or more agencies[ ] in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government." 5 U.S.C. App. 2 § 3(2). The Act imposes a number of transparency requirements on advisory committees, including that advisory committee meetings be open to the public and that advisory committee records be publicly available.

With respect to the open meeting requirement, FACA provides that "[e]ach advisory committee meeting shall be open to the public," id. § 10(a)(1), and that "timely notice of each such meeting shall be published in the Federal Register," id. § 10(a)(2). And as to committee records, FACA mandates that 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" be made available for public inspection, subject only to the exceptions provided under the Freedom of Information Act, 5 U.S.C. § 552. 5 U.S.C. App. 2 § 10(b).

B. Creation of the DAC

Drone availability and use in the United States has steadily increased over the past few years. U.S. drone sales more than doubled between 2016 and 2017, with commercial drones representing a growing share of the drone market. Compl. ¶ 20, ECF No. 1. In response to this rapidly expanding drone use, the FAA announced the formation of the DAC in May 2016. Id. ¶ 24. The DAC was set up under the RTCA Advisory Committee, an advisory committee utilized by the FAA and DOT, id. ¶ 12, as a "broad based advisory committee that w[ould] provide advice on key unmanned aircraft integration issues,"id. ¶ 24 (quoting May 2016 FAA Press Release, Compl. Ex. 2, ECF No. 1-2). It held its first public meeting on September 16, 2016. Id. ¶ 26.

The FAA issued Terms of Reference to guide the operation of the DAC. See id.¶ 28; DAC Terms of Reference at 1, Compl. Ex. 1. The Terms of Reference identified the DAC as a federal advisory committee subject to FACA reporting requirements, DAC Terms of Reference at 6, and charged the DAC with "identify[ing] and recommend[ing] a single, consensus-based set of resolutions for issues regarding the efficiency and safety of integrating UAS [unmanned aerial systems] into the NAS and ... develop[ing] recommendations to address those issues and challenges," Compl. ¶ 28 (quoting DAC Terms of Reference at 2). The Terms of Reference also specified that while the DAC was an "open venue" designed to "ensure transparency" in the discussion of the various issues relating to integrating drones into the NAS, it would be supplemented by task groups "established to develop recommendations and other documents," and by the DACSC, for which only "[s]ome meetings" would be open to the public. DAC Terms of Reference at 1–2. In its press release announcing the DAC's first meeting on September 16, 2016, the FAA explained that the DAC would "conduct more detailed business through a subcommittee and various task groups" that would "help the FAA prioritize its activities." August 31, 2016 FAA Press Release at 2, Compl. Ex. 3.

C. Operation of the DAC Between 2016 and 2018

The DAC officially met six times between September 2016 and March 2018. See generally Compl. ¶¶ 54–92. Each meeting of the DAC was announced in advance and held open to the public. See generally id. At DAC meetings, the committee discussed progress made on the various issues identified with drone integration, including work performed by the DACSC and three DAC task groups established to research particular topics identified by the FAA and the DAC.

1. September 16, 2016 to January 31, 2017

At the first meeting of the DAC on September 16, 2016, the Committee discussed a number of administrative matters, including regulatory issues and procedures it would follow going forward. See generally Sept. 16, 2016 DAC Meeting Minutes, Compl. Ex. 4. The DAC identified several action items at the end of the meeting, including to "[e]stablish a standing DAC Subcommittee (DACSC) ... [and] task the DACSC to establish a ranked set of priorities among the remaining drone integration issues the DAC identified at its inaugural meeting," and to "[e]stablish a task group to develop a minimum set of requirements ... that operators can follow to gain access to airspace."

Following the meeting, the FAA published detailed Terms of Reference for the DACSC on October 28, 2016. DACSC Terms of Reference, Compl. Ex. 6. The DACSC Terms of Reference explained that the DACSC's purpose was to "support the DAC in developing consensus-based recommendations to the FAA on issues related to the integration of UAS into the nation's airspace." Id. at 1. The DACSC, composed of subject-matter experts on drone and NAS integration issues, would "provide the staff work for the DAC, applying knowledge and expertise to forge consensus on critical issues and providing input to the DAC for public deliberation and the development of recommendations to be forwarded to the FAA." Id.

The DACSC Terms of Reference also identified the DACSC's role in monitoring the activities of the various task groups to be set up by the DAC. The DACSC was to "provide guidance and oversight to the Task Groups," which the Terms of Reference defined as "shorter-lived groups established to forge consensus-based recommendations in response to specific taskings handed down from the DAC." Id. at 2. The Terms of Reference identified a clear hierarchical structure, with the FAA issuing taskings to the DAC, which would then hand down task statements to the DACSC, with the DACSC coordinating the work of the DAC task groups. See id. The Terms of Reference also stated that the DACSC would "address issues as directed by the DAC," with "[n]o recommendations ... flow[ing] directly from the DACSC or DAC TGs [task groups] directly to the FAA" and with all recommendations to be "vetted in a public DAC meeting and transmitted to the FAA upon approval by the DAC." Id. at 3.

Between its first meeting on September 16, 2016 and its second meeting on January 31, 2017, the DAC also established its first two task groups, Task Group 1 and Task Group 2. Compl. ¶ 59. Task Group 1 was set up as the "Roles and Responsibilities" task group, charged with evaluating the relative roles and responsibilities of federal, state, and local government actors in regulating drones. See January 31, 2017 DAC Meeting Minutes at 3, Compl. Ex. 5. Task Group 2, the "Access to Airspace" task group, was charged with evaluating access to airspace requirements for drones. See id. at 5. During that time period, the DACSC, Task Group 1, and Task Group 2 engaged in official committee business, and held meetings that were not publicly noticed or announced to the public. Compl. ¶¶ 60–61.

2. January 31, 2017 to May 3,...