Case Detail

FOIA Project Annotation: Judge Reggie Walton has ruled that while internet browsing histories for OMB Director Mick Mulvaney and Secretary of Agriculture Sonny Perdue met most of the four factors for qualifying as agency records established by the D.C. Circuit in Burka v. Dept of Health and Human Services, 87 F.3d 508 (D.C. Cir. 1996), because they were not integrated into the agencies' filing systems as required under Tax Analysts v. Dept of Justice, 492 U.S. 136 (1989), they are not ultimately agency records. CoA Institute submitted FOIA requests to both OMB and the Department of Agriculture for the internet browsing histories of Mulvaney and Perdue. USDA told CoA Institute that Perdue's internet browsing history was not integrated into the agency's record system and that to disclose it would require creation of a record. CoA Institute filed an administrative appeal, which was denied. Since OMB failed to respond within the statutory time limit, CoA Institute filed suit against both agencies. The agencies asked Walton to dismiss the case under Rule 12(b)(6), arguing that Walton did not have subject-matter jurisdiction because the records were not agency records subject tot FOIA. Cause of Action Institute, however, pointed to a decision by Judge Ketanji Brown-Jackson in Cause of Action Institute v. IRS, 390 F. Supp. 3d 84 (D.D.C. 2019), in which Brown-Jackson ruled that an agency's allegation that records were not agency records was a substantive defense to be considered when ruling on the merits but was not a jurisdictional bar to hearing the case in the first place. Walton agreed with Brown-Jackson's decision, noting that "the question of whether the browsing histories at issue are records within the meaning of the FOIA 'pertains to the merits of[the plaintiff's] claim, rather than the Court's power to adjudicate the dispute and grant the requested relief. . .'" Walton decided to convert the agencies' motions to dismiss to motions for summary judgment. Walton proceeded to analyze whether the browsing histories qualified as agency records under the four-factor test developed in Burka. The first factor in Burka deals with the creator's intent to retain or relinquish control over the record. CoA Institute argued that the intent referred the agency while the agencies claimed the intent to control the record resided with the individual. Siding with CoA Institute, Walton noted that "the relevant inquiry with respect to the first Burka factor focuses on the agency's intent as the creator the document, rather than the individual employee's intent when generating the document in the course of his or her employment. The defendants do not cite, nor can the Court locate, any case law standing for the proposition that the intent factor articulated in Burka refers to the individual agency employee's subjective intent, as opposed to the intent of the agency." He added that "here, there is no suggestion that the defendants intended to relinquish control of the browsing histories." Turning to the second factor in Burka, the agency's ability to use and dispose of the records, Walton observed that "the second Burka factor weighs in favor of [CoA's] argument that the browsing histories are agency records. As to the defendants' ability to use the browsing histories, the defendants do not dispute that they have the ability to use the browsing histories." The third Burka factor deals with whether the agency read or relied upon the record. This factor, Walton found favored the agencies. The final Burka factor addresses the extent to which records are integrated into the agency's record system. Since the internet browsing histories resided on the agencies' computer systems, Walton agreed the fourth factor also weighed against the defendants. However, having found that the weight of the Burka factors was against the agencies, Walton concluded that Tax Analysts was ultimately controlling. He pointed out that "although some of the factors that comprise the Burka four-factor test weigh in favor of a finding that the browsing histories were under the defendants' control, because 'use is the decisive factor' pursuant to the Tax Analysts inquiry and defendants have demonstrated that they 'neither created nor referenced [the browsing histories] in the conduct of [their] official duties,' the [defendants] have not exercised the degree of control required to subject the document to disclosure under [the] FOIA.' Therefore, the Tax Analysts test compels the Court to conclude that the browsing records are not agency records and accordingly, the Court grants the defendants' motion for summary judgment."
Issues: Agency Record

Date Filed	Doc #	Docket Text
2018-06-26	1	COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-5554497) filed by CAUSE OF ACTION INSTITUTE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Civil Cover Sheet, # 9 Summons OMB, # 10 Summons USDA, # 11 Summons US Att'y Gen., # 12 Summons Civil Process Clerk)(Mulvey, Ryan) (Entered: 06/26/2018)
2018-06-26	2	Corporate Disclosure Statement by CAUSE OF ACTION INSTITUTE. (Mulvey, Ryan) (Entered: 06/26/2018)
2018-06-26	3	NOTICE of Appearance by Lee A. Steven on behalf of CAUSE OF ACTION INSTITUTE (Steven, Lee) (Entered: 06/26/2018)
2018-06-27		Case Assigned to Judge Reggie B. Walton. (zsb) (Entered: 06/27/2018)
2018-06-27	4	SUMMONS (4) Issued Electronically as to UNITED STATES DEPARTMENT OF AGRICULTURE, WHITE HOUSE OFFICE OF MANAGEMENT AND BUDGET, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zsb) (Entered: 06/27/2018)
2018-07-09	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. WHITE HOUSE OFFICE OF MANAGEMENT AND BUDGET served on 7/2/2018 (Mulvey, Ryan) (Entered: 07/09/2018)
2018-07-09	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF AGRICULTURE served on 7/2/2018 (Mulvey, Ryan) (Entered: 07/09/2018)
2018-07-09	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 07/02/2018. (Mulvey, Ryan) (Entered: 07/09/2018)
2018-07-09	8	ENTERED IN ERROR. . . . .RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/2/2018. Answer due for ALL FEDERAL DEFENDANTS by 8/1/2018. (Mulvey, Ryan) Modified on 7/13/2018 (ztd). (Entered: 07/09/2018)
2018-07-09	9	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/6/2018. Answer due for ALL FEDERAL DEFENDANTS by 8/5/2018. (ztd) (Entered: 07/13/2018)
2018-07-13		NOTICE OF CORRECTED DOCKET ENTRY: re 8 Summons Returned Executed in FOIA as to U.S. Attorney, was entered in error and refiled said pleading as docket entry no. 9 . (ztd) (Entered: 07/13/2018)
2018-08-03	10	NOTICE of Appearance by Benjamin Thomas Takemoto on behalf of All Defendants (Takemoto, Benjamin) (Entered: 08/03/2018)
2018-08-03	11	Consent MOTION for Extension of Time to File Answer re 1 Complaint, by UNITED STATES DEPARTMENT OF AGRICULTURE, WHITE HOUSE OFFICE OF MANAGEMENT AND BUDGET (Takemoto, Benjamin) (Entered: 08/03/2018)
2018-08-06		MINUTE ORDER. Upon consideration of the defendants' 11 Consent Motion for an Extension of Time, and for good cause shown, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the defendants shall file their response to the plaintiff's Complaint on or before September 5, 2018. Signed by Judge Reggie B. Walton on August 6, 2018. (lcrbw3) (Entered: 08/06/2018)
2018-08-06		Set/Reset Deadlines: Answer to the Complaint due by 9/5/2018, (hs) (Entered: 08/06/2018)
2018-09-04	12	Consent MOTION for Extension of Time to File Answer re 1 Complaint, by UNITED STATES DEPARTMENT OF AGRICULTURE, WHITE HOUSE OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Text of Proposed Order)(Takemoto, Benjamin) (Entered: 09/04/2018)
2018-09-05		MINUTE ORDER. Upon consideration of the 12 Second Consent Motion for an Extension of Time, and for good cause shown, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the defendants shall file their motion to dismiss the plaintiff's Complaint on or before September 7, 2018. It is further ORDERED that the plaintiff shall file any opposition to the defendants' motion to dismiss on or before October 8, 2018. It is further ORDERED that the defendants shall file any reply on or before October 22, 2018. Signed by Judge Reggie B. Walton on September 5, 2018. (lcrbw3) (Entered: 09/05/2018)
2018-09-06		Set/Reset Deadlines: Motion to dismiss complaint due by 9/7/2018. Response due by 10/8/2018 Reply due by 10/22/2018. (hs) (Entered: 09/06/2018)
2018-09-07	13	MOTION to Dismiss for Lack of Jurisdiction by UNITED STATES DEPARTMENT OF AGRICULTURE, WHITE HOUSE OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Index of Exhibits, # 4 Exhibit Graves Decl., # 5 Exhibit Mao Decl., # 6 Exhibit Walsh Decl., # 7 Exhibit McDonald Decl.)(Takemoto, Benjamin) (Entered: 09/07/2018)
2018-10-01	14	NOTICE of Change of Address by Benjamin Thomas Takemoto (Takemoto, Benjamin) (Entered: 10/01/2018)
2018-10-08	15	Memorandum in opposition to re 13 MOTION to Dismiss for Lack of Jurisdiction filed by CAUSE OF ACTION INSTITUTE. (Attachments: # 1 Index of Exhibits, # 2 Exhibit First Mulvey Decl., # 3 Exhibit Second Mulvey Decl., # 4 Text of Proposed Order, # 5 Text of Proposed Order)(Mulvey, Ryan) (Entered: 10/08/2018)
2018-10-08	16	MOTION for Discovery , in the alternative, under Rule 56(d) by CAUSE OF ACTION INSTITUTE (Attachments: # 1 Memorandum in Support, # 2 Index of Exhibits, # 3 Exhibit First Mulvey Decl., # 4 Exhibit Second Mulvey Decl., # 5 Text of Proposed Order, # 6 Text of Proposed Order)(Mulvey, Ryan) (Entered: 10/08/2018)
2018-10-22	17	REPLY to opposition to motion re 13 MOTION to Dismiss for Lack of Jurisdiction filed by UNITED STATES DEPARTMENT OF AGRICULTURE, WHITE HOUSE OFFICE OF MANAGEMENT AND BUDGET. (Takemoto, Benjamin) (Entered: 10/22/2018)
2018-10-22	18	Memorandum in opposition to re 16 MOTION for Discovery , in the alternative, under Rule 56(d) filed by UNITED STATES DEPARTMENT OF AGRICULTURE, WHITE HOUSE OFFICE OF MANAGEMENT AND BUDGET. (Takemoto, Benjamin) (Entered: 10/22/2018)
2018-10-29	19	REPLY to opposition to motion re 16 MOTION for Discovery , in the alternative, under Rule 56(d) filed by CAUSE OF ACTION INSTITUTE. (Mulvey, Ryan) (Entered: 10/29/2018)
2018-12-12	20	NOTICE of Supplemental Declaration by UNITED STATES DEPARTMENT OF AGRICULTURE, WHITE HOUSE OFFICE OF MANAGEMENT AND BUDGET re 13 MOTION to Dismiss for Lack of Jurisdiction (Attachments: # 1 Declaration Anthony W. McDonald)(Takemoto, Benjamin) (Entered: 12/12/2018)
2019-04-09	21	GENERAL ORDER FOR CIVIL CASES BEFORE THE HONORABLE REGGIE B. WALTON. Signed by Judge Reggie B. Walton on April 9, 2019. (lcrbw3) (Entered: 04/09/2019)
2019-07-19	22	NOTICE OF SUPPLEMENTAL AUTHORITY by CAUSE OF ACTION INSTITUTE (Attachments: # 1 Exhibit CoA Inst. v. Internal Revenue Serv., No. 16-2354, slip op. (D.D.C. July 17, 2019))(Mulvey, Ryan) (Entered: 07/19/2019)
2019-09-30	23	ORDER. In accordance with the attached Order, it is hereby ORDERED that the 13 Defendants' Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. The motion is DENIED with respect to the defendants' request for dismissal pursuant to Rule 12(b)(1). The motion is GRANTED with respect to the defendants' request for summary judgment pursuant to Rule 56. It is further ORDERED that 16 Plaintiff Cause of Action Institute's Motion, in the Alternative, for Rule 56(d) Discovery is DENIED. It is further ORDERED that this Order is not a final Order subject to appeal. Signed by Judge Reggie B. Walton on September 30, 2019. (lcrbw2) (Entered: 09/30/2019)
2019-10-31	24	NOTICE of Change of Address by Lee A. Steven (Steven, Lee) (Entered: 10/31/2019)
2019-11-15	25	MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on November 15, 2019. (lcrbw2) (Entered: 11/15/2019)
2019-11-15	26	ORDER. In accordance with the Memorandum Opinion issued on this same date, it is hereby ORDERED that 16 Plaintiff Cause of Action Institute's Motion, in the Alternative, for Rule 56(d) Discovery is DENIED. It is further ORDERED that the 13 Defendants' Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED with respect to the defendants' alternative request for summary judgment pursuant to Federal Rule of Civil Procedure 56 raised in the defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion is DENIED in all other respects. It is further ORDERED that summary judgment is ENTERED for the defendants on the plaintiff's Complaint. It is further ORDERED that this case is CLOSED. Signed by Judge Reggie B. Walton on November 15, 2019. (lcrbw2) (Entered: 11/15/2019)
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