Case Detail
| Case Title | CAUSE OF ACTION INSTITUTE v. UNITED STATES DEPARTMENT OF JUSTICE | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2018cv02373 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2018-10-15 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2020-05-06 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Judge Amy Berman Jackson | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | CAUSE OF ACTION INSTITUTE | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Description | Cause of Action Institute submitted a FOIA request to the Department of Justice for records concerning Executive Order 13,457. The agency acknowledged receipt of the request and various components provided records. The Office of Information Policy located 143 pages. It disclosed 32 pages entirely and 11 pages with redactions labeled "non-responsive. OIP also withheld 71 pages under Exemption 5 (privileges). COA filed an administrative appeal arguing that OIP had improperly separated portions of documents into separate records. OIP denied COA's appeal. COA then filed suit. Complaint issues: Litigation - Attorney's fees, Agency Record | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | UNITED STATES DEPARTMENT OF JUSTICE | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Appeal | D.C. Circuit 20-5182 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Complaint attachment 2 Complaint attachment 3 Complaint attachment 4 Complaint attachment 5 Complaint attachment 6 Complaint attachment 7 Complaint attachment 8 Complaint attachment 9 Complaint attachment 10 Complaint attachment 11 Complaint attachment 12 Complaint attachment 13 Complaint attachment 14 Opinion/Order [28] FOIA Project Annotation: A slew of recent opinions have dealt with an issue created by the D.C. Circuit's opinion in American Immigration Lawyers Association v. Executive Office of Immigration Review, 830 F. 3d 667 (D.C. Cir. 2016), in which the appeals court held that agencies could not withhold records based on the agencies determination that they were non-responsive to the request, but, rather, could only withhold records based on an exemption claim. However, the D.C. Circuit also threw agencies a lifeline of sorts by suggesting agencies could redefine records by subdividing them into smaller separate records as long as there was some reasonable consistency in the way records were broken up and separated into smaller groups. Unfortunately, the circumstances existing in the AILA case were not typical of instances where some portions of a larger record are clearly not responsive to the subject matter or time frame of a request but are not otherwise exempt. Instead, EOIR had redacted the names of some administrative law judges who had been subject to complaints because the agency decided they did not fit within the specific types of complaints that AILA had requested. The D.C. Circuit found this level of parsing was too much and told EOIR that it could not withhold those kinds of records if they were not subject to an exemption. In AILA, the D.C. Circuit suggested agencies use guidance issued by the Office of Information Policy explaining how a record was defined for purposes of the Privacy Act. To qualify for coverage under the Privacy Act, a record must refer to an individual's name or unique identifier. But the statute's definition of a record also provides that it must be "about" the individual as well. Since a primary purpose of the Privacy Act is to serve a records management function to collect and maintain personal information that is then subject to various protections â€" such as a right of access and amendment â€" the ability to define personal information protected under the Privacy Act serves a purpose different than defining agency records more generally. In the wake of AILA, OIP updated its guidance on what constituted an agency record. The guidance included urging agencies to use the Privacy Act's definition of a record and to link records to the subject of the request. As to linking records, the guidance noted that "distinctions are most easily made when the document can reasonably be broken into discrete units. . .By contrast, if a document cannot be viewed as containing discrete 'terms or groupings' of information on different topics then it must be treated as a single 'record' and the entirety must be processed for exemption applicability." Cause of Action Institute submitted a three-part FOIA request to OIP for categories of congressional correspondence designed to trigger the non-responsiveness issue. OIP located 1,021 pages of responsive records. Of those records, 816 pages were referred to various components. OIP disclosed 143 records altogether. OIP withheld 118 pages under Exemption 5 (privileges) and redacted one page under Exemption 6 (invasion of privacy). Another 34 pages were still pending as referrals but OIP indicated that some of those pages would be marked as non-responsive. COA filed suit, alleging that OIP had improperly withheld portions of three letters to Congress by separating them out and identifying them as non-responsive records. COA also argued that OIP had a policy or practice of violating FOIA by improperly defining records. In determining whether portions of the Questions for the Record letters were responsive to COA's request, OIP explained to Judge Amy Berman Jackson that "a 'record' would consist of a question or a sub-question and any corresponding question." COA argued that definition was too narrow and that the agency was required to disclose the entire record, including all questions, sub-questions, and responses. Berman Jackson agreed that "the agency's decision to treat a sub-question as distinct from the overall question of which it was a part is too narrow." But she indicated that "plaintiff's definition, which would require disclosure of questions and responses that are wholly unrelated to plaintiff's FOIA request is too broad. The Court finds that a record in this case should be defined as a question, including all subparts or sub-questions, and any corresponding answers." Berman Jackson indicated that her conclusion was based on AILA and subsequent district court decisions interpreting AILA. She pointed out that "by their nature, QFRs cover multiple subjects; the documents are compilations of multiple questions with questions organized by member, as opposed to by topic. At times, QFRs can 'consist of hundreds of pages of questions, and questions can come from dozens of Senators or Representatives. The organization of QFRs can vary: the questions may be sent in multiple files, divided by Senator or Representative, or they may be compiled into one large file.' Compiling different members' questions into a single document, and DOJ's responses into a singe response document, can be efficient, as it eliminates the need for members to send multiple letters to the Department and for the Department to direct separate responses to members." COA argued that "because each letter and its attachments are maintained together as one unit, they should be considered one record." COA cited American Oversight v. Dept of Health and Human Services, 380 F. Supp. 3d 45 (D.D.C. 2019), in which the court faulted the agency's decision to withhold all responses from Congress to the agency in an email thread because the request only asked for communications from the agency to Congress as too stingy and literal. COA contended that the circumstances here were analogous. Berman Jackson agreed with COA. She noted that 'the QFR and the response to it together make up one record because much like an email that is sent in reply, the response to a QFR incorporates the question, and together the two form a unified exchange. Within the unified exchange may be a sub-question, because a sub-question naturally pertains to the question in which it is embraced. Defendant's definition, which separates a sub-question and the response to it as a distinct record, is too narrow. If the umbrella question was disclosed, then logically any sub-questions and their corresponding answers should also be disclosed." But Berman Jackson found COA's definition too broad here as well. She observed that "it is unnecessary to disclose all QFRs and their responses to understand the ones that are responsive to plaintiff's FOIA request; nor are they necessary to provide context or helpful information." Berman Jackson dismissed COA's policy and practice claim for failure to state a claim. She noted that "here, the Court has largely upheld the agency's application of its own policy; it took issue with just one specific aspect of the agency's subdivision of documents into records." She added that "any possibility that OIP's Guidance on what is a 'record' might result in unlawful withholding of information in future FOIA requests that plaintiff has submitted is speculative given the fact-specific nature of the inquiry."
Issues: Agency Record | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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