Skip to content

Case Detail

[Subscribe to updates]
Case TitleELECTRONIC PRIVACY INFORMATION CENTER v. NATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE et al
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2019cv02906
Date Filed2019-09-27
Date ClosedOpen
JudgeJudge Trevor N. McFadden
PlaintiffELECTRONIC PRIVACY INFORMATION CENTER
Case DescriptionThe Electronic Privacy Information Center submitted a FOIA request to the National Security Commission on Artificial Intelligence for records prepared for or used by the Commission during its meetings. EPIC also requested expedited processing. The Commission acknowledged receipt of the request but after hearing nothing further from the Commission, EPIC filed suit.
Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Attorney's fees

DefendantNATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE
DefendantERIC SCHMIDT in his official capacity as Chairman of the National Security Commission on Artificial Intelligence
DefendantYLLI BAJRAKTARI in his official capacity as Executive Director of the National Security Commission on Artificial Intelligence
DefendantUNITED STATES DEPARTMENT OF DEFENSE
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Opinion/Order [26]
FOIA Project Annotation: In finding that the National Security Commission on Artificial Intelligence is an agency subject to FOIA, Judge Trevor McFadden has drawn some distinctions between entities that are part of the Executive Office of the President, which are frequently not subject to FOIA because their primary function is to advise the President, and entities that are further removed from the presidential orbit because they are located in an executive department, such as the Defense Department. The Commission was established as part of the 2019 Defense Authorization Act "to review advances in artificial intelligence, related machine learning developments, and associated technologies." The Commission consisted of 15 members. The Secretary of Defense appointed two members, while the Secretary of Commerce appointed one. The chair or ranking member of six congressional committees appointed the others. The Commission was required to submit three reports to the President and Congress.An initial report was due within 180 days of its creation, and an interim report was due in August 2019. Both reports were submitted late. In February, the Electronic Privacy Information Center submitted a FOIA request to DOD for records concerning the Commission. By that time, the Commission had held 13 meetings and had received more than 100 briefings. EPIC asked for expedited processing which was denied. In September 2019, EPIC submitted requests under FOIA as well as the Federal Advisory Committee Act directly to the Commission. After EPIC filed suit against DOD, McFadden held a hearing at which it became evident that the Commission was more likely to have the records EPIC sought than was DOD itself. The government argued that the Commission was not an agency subject to FOIA. McFadden pointed out that in the authorizing statute, the Commission "shall be considered an independent establishment of the Federal Government as defined by section 104 of title 5." McFadden indicated that "Section 104 of title 5, meanwhile, explains 'for purposes of this title, "independent establishment 'means. . .an establishment in the executive branch. . .which not an Executive department, military department, Government corporation, part thereof, or part of an independent establishment.' Congress could have hardly been clearer. Having said that FOIA applies to 'any. . .establishment in the executive branch,' it chose to call the Commission an 'establishment in the executive branch.'" McFadden cited Energy Research Foundation v. Defense Nuclear Facilities Safety Board, 917 F.2d 581 (D.C. Cir. 1990), as a prior D.C. Circuit decision that had reached an identical conclusion �" that an entity housed in the Defense Department was intended to be a separate agency under FOIA. McFadden pointed out that the D.C. Circuit "looked at the whole of the Board's statute and found 'nothing to indicate that Congress intended to excuse the Board from complying with FOIA.' The same is true here." In response, McFadden noted, "the Government urges that 5 U.S.C. § 552(f)(1) does not mean what it says. By its terms, § 552(f)(1) declares that 'any. . .establishment in the executive branch' is subject to FOIA. But the Government says not so. The Government contends that, the caselaw requires a non-literal reading," pointing to Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), which established the sole function test for agencies whose only role was to advice the President. But McFadden observed that "the relevance of Soucie's functional analysis is not immediately apparent. The decision came before the enactment of § 552(f)(1). It thus dealt with the general phrase 'authority of the Government,' not the more specific phrase 'establishment in the executive branch.'" The government urged McFadden to consider the context in which the legislative history of the 1974 amendment showed congressional approval of Soucie for purposes of determining when an agency within the EOP was subject to FOIA, which was accepted by the Supreme Court in Kissinger v. Reporters Committee, 445 U.S. 136 (1980). To this argument, McFadden responded that "whatever misgivings the Court may have about using legislative history, the Court is bound by the higher courts' repeated reliance on the conference report the Government identifies. The D.C. Circuit has cited that report to hold that not all entities in the White House are subject to FOIA, despite the plain terms of § 552(f)(1). So this would be a much different case if the Commission were in the White House. But it is not." However, McFadden observed, the government drew a larger principle from Soucie. "According to the Government," McFadden noted, "whenever it would raise separation of powers concerns to say that an entity is subject to FOIA, the text of § 552(f)(1) must give way. The canon of constitutional avoidance would kick in, and a court would have to apply Soucie's functional test to determine whether the entity must comply with FOIA." He added that "the Government reasons that under Soucie's functional test, the Commission does not exercise 'substantial independent authority,' and is thus exempt from FOIA." Rejecting the governments arguments, McFadden pointed out that "the Government reads far too much in the Soucie line of cases. These cases do not hold that the functional test applies whenever imposing FOIA on an entity would raise separation of powers concerns. They stand for the much narrower proposition that a functional approach is apt when the question is whether an official or entity close to the President must comply with FOIA." He added that "the cases that rely on this legislative history apply a functional analysis given a specific separation of powers concern. That specific concern is not at issue here. This case does not involve presidential staff or an entity in the White House. Indeed, the Government stresses that the Commission is far removed from the President." The government argued that Dong v. Smithsonian Institution, 125 F. 3d 866 (D.C. Cir. 1997), in which the D.C. Circuit found that the Smithsonian Institution was not subject to FOIA because it was not an establishment in the executive branch, supported its position here. But McFadden noted that "Dong simply did not make the step that the Government insists it made. The court did not apply a functional test because of separation of powers concerns. It applied a functional test because the Smithsonian was neither an 'establishment in the executive branch' nor a 'Government controlled corporation.'" McFadden explained that "Congress chose to call the Commission an 'establishment in the executive branch.' The Government has not convinced the Court that it should ignore what Congress said. And even under the Government's preferred functional approach, the Commission is still subject to FOIA. The Court thus concludes that the Commission must comply with FOIA." Having made this conclusion, McFadden indicated that there were unresolved issues pertaining to EPIC's requests that would need to be addressed now that the Commission was required to comply with its requests.
Issues: Agency - Federal
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2019-09-271COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-6402957) filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons)(Davisson, John) (Entered: 09/27/2019)
2019-09-272LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ELECTRONIC PRIVACY INFORMATION CENTER (Davisson, John) (Entered: 09/27/2019)
2019-09-273NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 09/27/2019)
2019-09-274MOTION for Preliminary Injunction by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Text of Proposed Order)(Davisson, John) (Entered: 09/27/2019)
2019-09-30Case Assigned to Judge Trevor N. McFadden. (zeg) (Entered: 09/30/2019)
2019-09-305SUMMONS (4) Issued Electronically as to YLLI BAJRAKTARI, NATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE, ERIC SCHMIDT, UNITED STATES DEPARTMENT OF DEFENSE. (Attachment: # 1 Notice and Consent)(zeg) (Entered: 09/30/2019)
2019-10-016STANDING ORDER Establishing Procedures for Cases Before Judge Trevor N. McFadden. The parties are hereby ORDERED to read and comply with the directives in the attached standing order. Signed by Judge Trevor N. McFadden on 10/1/2019. (lctnm2) (Entered: 10/01/2019)
2019-10-017REQUEST FOR SUMMONS TO ISSUE for U.S. Attorney for the District of Columbia re 1 Complaint, filed by ELECTRONIC PRIVACY INFORMATION CENTER. Related document: 1 Complaint, filed by ELECTRONIC PRIVACY INFORMATION CENTER.(Davisson, John) (Entered: 10/01/2019)
2019-10-018REQUEST FOR SUMMONS TO ISSUE for Attorney General of the United States filed by ELECTRONIC PRIVACY INFORMATION CENTER.(Davisson, John) (Entered: 10/01/2019)
2019-10-01MINUTE ORDER. On September 27, 2019, Plaintiff filed a 4 Motion for Preliminary Injunction, invoking LCvR 65.1(d). Therefore, the Defendant shall file a responsive pleading on or before October 8, 2019. Plaintiff's Reply, if any, is due on or before October 11, 2019, and the Court will hold a hearing on the Motion on October 16, 2019, at 10:30 a.m., in Courtroom 2. SO ORDERED. Signed by Judge Trevor N. McFadden on 10/1/2019. (lctnm2) (Entered: 10/01/2019)
2019-10-029SUMMONS (2) Issued Electronically as U.S. Attorney and U.S. Attorney General. (ztth) (Entered: 10/02/2019)
2019-10-0210NOTICE of Appearance by Gary Daniel Feldon on behalf of All Defendants (Feldon, Gary) (Entered: 10/02/2019)
2019-10-02Set/Reset Deadlines/Hearings: Defendants' responsive pleading due by 10/8/2019. Plaintiff's reply due by 10/11/2019. Motion Hearing set for 10/16/2019 at 10:30 AM in Courtroom 2 before Judge Trevor N. McFadden. (hmc) (Entered: 10/02/2019)
2019-10-0311RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 10/2/2019. Answer due for ALL FEDERAL DEFENDANTS by 11/1/2019. (Davisson, John) (Entered: 10/03/2019)
2019-10-0812Counter MOTION to Modify Scheduling Order by NATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Feldon, Gary) (Entered: 10/08/2019)
2019-10-09MINUTE ORDER granting in part Defendants' 12 Consent Motion to Modify Briefing Schedule. Defendants shall file their responsive pleading by today, October 9, 2019. Plaintiff's reply, if any, shall remain due on or before October 11, 2019. SO ORDERED. Signed by Judge Trevor N. McFadden on 10/9/2019. (lctnm2) (Entered: 10/09/2019)
2019-10-09Set/Reset Deadlines: Defendants' responsive pleading due by 10/9/2019. Plaintiff's reply due by 10/11/2019. (hmc) (Entered: 10/09/2019)
2019-10-0913RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 10/4/19. (Davisson, John) (Entered: 10/09/2019)
2019-10-0914RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF DEFENSE served on 10/3/2019 (Davisson, John) (Entered: 10/09/2019)
2019-10-0916Memorandum in opposition to re 4 MOTION for Preliminary Injunction filed by NATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE, UNITED STATES DEPARTMENT OF DEFENSE. (ztth) (Entered: 10/11/2019)
2019-10-1015Consent MOTION for Extension of Time to File Response/Reply as to 4 MOTION for Preliminary Injunction Nunc Pro Tunc by NATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Text of Proposed Order)(Feldon, Gary) (Entered: 10/10/2019)
2019-10-10MINUTE ORDER granting Defendants' 15 Consent Motion for an Extension of Time, Nunc Pro Tunc , to Oppose the Preliminary Injunction Motion. Defendants' Opposition shall be deemed filed on October 9, 2019. SO ORDERED. Signed by Judge Trevor N. McFadden on 10/10/2019. (lctnm2) (Entered: 10/10/2019)
2019-10-1117REPLY to opposition to motion re 4 MOTION for Preliminary Injunction filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Davisson, John) (Entered: 10/11/2019)
2019-10-16Minute Entry for proceedings held before Judge Trevor N. McFadden: Motion Hearing held on 10/16/2019. MOTION for Preliminary Injunction filed by ELECTRONIC PRIVACY INFORMATION CENTER, heard and DENIED for reasons stated on the record. Defendants' Motion to Dismiss due by 10/31/2019. Plaintiff's Opposition due by 11/7/2019. Defendants' Reply due by 11/14/2019. (Court Reporter: Elizabeth Saint-Loth.) (hmc) (Entered: 10/16/2019)
2019-10-1618ORDER denying 4 Motion for Preliminary Injunction and setting briefing schedule for a Partial Motion to Dismiss. See attached Order for details. Signed by Judge Trevor N. McFadden on 10/16/2019. (lctnm2) (Entered: 10/16/2019)
2019-10-1819RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. NATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE served on 10/15/2019 (Davisson, John) (Entered: 10/18/2019)
2019-10-1820RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. ERIC SCHMIDT served on 10/11/2019 (Davisson, John) (Entered: 10/18/2019)
2019-10-1821RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. YLLI BAJRAKTARI served on 10/11/2019 (Davisson, John) (Entered: 10/18/2019)
2019-10-1822TRANSCRIPT OF PROCEEDINGS, before Judge Trevor N. McFadden, held on 10-16-2019. Page Numbers: 1 - 61. Date of Issuance: 10-18-2019. Court Reporter: Elizabeth SaintLoth; Telephone number: 202-354-3242. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced abov e. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 11/8/2019. Redacted Transcript Deadline set for 11/18/2019. Release of Transcript Restriction set for 1/16/2020.(Saint-Loth, Elizabeth) (Entered: 10/18/2019)
2019-10-3123Partial MOTION to Dismiss FOIA Claims by NATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Feldon, Gary) (Entered: 10/31/2019)
2019-11-0724Memorandum in opposition to re 23 Partial MOTION to Dismiss FOIA Claims filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Davisson, John) (Entered: 11/07/2019)
2019-11-1425REPLY to opposition to motion re 23 Partial MOTION to Dismiss FOIA Claims filed by NATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE, UNITED STATES DEPARTMENT OF DEFENSE. (Feldon, Gary) (Entered: 11/14/2019)
2019-12-0326MEMORANDUM OPINION AND ORDER denying the Government's 23 Motion to Dismiss FOIA claims. Signed by Judge Trevor N. McFadden on 12/3/2019. (lctnm2) (Entered: 12/03/2019)
2019-12-03MINUTE ORDER. The parties shall appear for a status conference on December 20, 2019, at 10:00 a.m. in Courtroom 2, before Judge Trevor N. McFadden. SO ORDERED. Signed by Judge Trevor N. McFadden on 12/3/2019. (lctnm2) (Entered: 12/03/2019)
2019-12-04Set/Reset Hearings: Status Conference set for 12/20/2019 at 10:00 AM in Courtroom 2 before Judge Trevor N. McFadden. (hmc) (Entered: 12/04/2019)
2019-12-1927STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit)(Davisson, John) (Entered: 12/19/2019)
2019-12-20Minute Entry for proceedings held before Judge Trevor N. McFadden: Status Conference held on 12/20/2019. Government's Answer or responsive pleading for the remainder of the Complaint due by 1/31/2020. Plaintiff's Opposition and Cross-Motion due by 2/14/2020. Government's Reply and Opposition to Plaintiff's Cross-Motion due by 2/28/2020. Plaintiff's Reply due by 3/6/2020. Status Conference set for 3/6/2020 at 10:00 AM in Courtroom 2 before Judge Trevor N. McFadden. (Court Reporter: Crystal Pilgrim.) (hmc) (Entered: 12/20/2019)
2020-01-3128Partial MOTION to Dismiss FACA Claims by YLLI BAJRAKTARI, NATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE, ERIC SCHMIDT (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Text of Proposed Order)(Feldon, Gary) (Entered: 01/31/2020)
2020-01-3129ANSWER to Complaint by YLLI BAJRAKTARI, NATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE, ERIC SCHMIDT, UNITED STATES DEPARTMENT OF DEFENSE.(Feldon, Gary) (Entered: 01/31/2020)
2020-02-04MINUTE ORDER. Before the Court are a complaint and an answer as to the FOIA claims in this case. It is hereby ORDERED that the parties shall meet and confer and file a Joint Status Report proposing a schedule for proceeding as to the FOIA claims. The schedule should address, among other things, the status of Plaintiff's FOIA requests, the anticipated number of documents responsive to Plaintiff's FOIA requests, the anticipated date(s) for release of the documents requested by Plaintiff, whether a motion for an Open America stay is likely in this case, whether a Vaughn index will be required in this case, and a briefing schedule for dispositive motions, if required. The parties shall file the report on or before March 3, 2020. A status conference remains scheduled for March 6, 2020. SO ORDERED. Signed by Judge Trevor N. McFadden on 2/4/2020. (lctnm2) (Entered: 02/04/2020)
2020-02-04Set/Reset Deadlines: Joint Status Report due by 3/3/2020. (hmc) (Entered: 02/04/2020)
2020-02-1430Memorandum in opposition to re 28 Partial MOTION to Dismiss FACA Claims filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit)(Davisson, John) (Entered: 02/14/2020)
2020-02-1431MOTION for Partial Summary Judgment by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order, # 4 Exhibit)(Davisson, John) (Entered: 02/14/2020)
2020-02-2832REPLY to opposition to motion re 28 Partial MOTION to Dismiss FACA Claims filed by YLLI BAJRAKTARI, NATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE, ERIC SCHMIDT, UNITED STATES DEPARTMENT OF DEFENSE. (Feldon, Gary) (Entered: 02/28/2020)
2020-02-2833Memorandum in opposition to re 31 MOTION for Partial Summary Judgment filed by YLLI BAJRAKTARI, NATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE, ERIC SCHMIDT, UNITED STATES DEPARTMENT OF DEFENSE. (Attachments: # 1 Response to Plaintiff's Statement of Genuine Facts Not in Dispute)(Feldon, Gary) (Entered: 02/28/2020)
2020-03-0334Joint STATUS REPORT by YLLI BAJRAKTARI, NATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE, ERIC SCHMIDT, UNITED STATES DEPARTMENT OF DEFENSE. (Feldon, Gary) (Entered: 03/03/2020)
2020-03-06Minute Entry for proceedings held before Judge Trevor N. McFadden: Status Conference held on 3/6/2020. The Commission was directed to continue processing 800 pages per month until June 6, 2020, when the parties shall file a Joint Status Report. (Court Reporter Crystal Pilgrim.) (tg) Modified Judge's name on 3/6/2020 (tg). (Entered: 03/06/2020)
2020-03-0635REPLY to opposition to motion re 31 MOTION for Partial Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Exhibit)(Davisson, John) (Entered: 03/06/2020)
2020-03-1036NOTICE of Clarification by ELECTRONIC PRIVACY INFORMATION CENTER re 35 Reply to opposition to Motion (Davisson, John) (Entered: 03/10/2020)
2020-03-2737NOTICE of Appearance by Carol Federighi on behalf of All Defendants (Federighi, Carol) (Entered: 03/27/2020)
2020-03-2738Unopposed MOTION to Modify Processing and Production Deadline by YLLI BAJRAKTARI, NATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE, ERIC SCHMIDT, UNITED STATES DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Federighi, Carol) (Entered: 03/27/2020)
2020-03-30MINUTE ORDER granting Defendants' 38 Unopposed Motion for Modification. It is hereby ORDERED that the National Security Commission on Artificial Intelligence shall process 400 pages of documents by March 31, 2020, in lieu of the prior requirement that the Commission process 800 pages by that date. SO ORDERED. Signed by Judge Trevor N. McFadden on 3/30/2020. (lctnm2) (Entered: 03/30/2020)
2020-03-30Set/Reset Deadlines: The Commission's 400 pages of processing due by 3/31/2020. (hmc) (Entered: 03/30/2020)
2020-04-2939NOTICE OF WITHDRAWAL OF APPEARANCE as to ELECTRONIC PRIVACY INFORMATION CENTER. Attorney Marc Rotenberg terminated. (Davisson, John) (Entered: 04/29/2020)
2020-06-0140MEMORANDUM OPINION re Defendants' 28 Partial Motion to Dismiss and Plaintiff's 31 Motion for Partial Summary Judgment. Signed by Judge Trevor N. McFadden on 6/1/2020. (lctnm2) (Entered: 06/01/2020)
2020-06-0141ORDER granting in part Defendants' 28 Partial Motion to Dismiss and granting in part Plaintiff's 31 Motion for Partial Summary Judgment. See attached Order for details. Signed by Judge Trevor N. McFadden on 6/1/2020. (lctnm2) (Entered: 06/01/2020)
Hide Docket Events
by FOIA Project Staff
Skip to toolbar