[00:00:02] Speaker 00:
Number 17-5171, electronic privacy information center appellate versus presidential advisory commission on election integrity at L. Mr. Rotenberg for the appellate, Mr. Tenney for the appellees.

[00:00:18] Speaker 05:
Mr. Rotenberg, good morning.

[00:00:21] Speaker 02:
Good morning and may it please the court.

[00:00:23] Speaker 02:
I'm Mark Rotenberg for EPIC.

[00:00:25] Speaker 02:
With me at council table is Helen Butler.

[00:00:28] Speaker 02:
I'd like to make three brief points at the outset and reserve one minute for rebuttal.

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The first is that the Presidential Commission on Election Integrity failed to undertake and publish a privacy impact assessment that was required by Section 208 of the E-Government Act.

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The second is that the Commission's action is subject to judicial review by this Court under Chapter 7 of the APA.

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The third point is that EPIC is entitled to a preliminary injunction.

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We have satisfied the four-factor test set out by this Court in Shirley and League of Women voters.

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The four factors require that we establish likelihood of success, irreparable harm, balance of equities, and also the public interest.

[00:01:24] Speaker 02:
You are going to get to standing.

[00:01:27] Speaker 02:
To the extent you have a question on standing, yes.

[00:01:29] Speaker 02:
The lower court found that Epic had both organizational standing and informational standing, relying on this.

[00:01:38] Speaker 04:
Well, is the organization

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a suitable plaintiff for a violation of a requirement that appears to be aimed at protecting the privacy of people who get these questionnaires.

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Judge Williams, we believe that... Or whose names are communicated in the questionnaires.

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So to your point, the statute set out an obligation for government agencies to undertake privacy impact assessment for the purpose of protecting privacy and to promote transparency and accountability in government practices.

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Our organization, the Electronic Privacy Information Center, was established to focus public attention on emerging privacy and civil liberties issues.

[00:02:31] Speaker 04:
I understand that, but the Supreme Court seems to take the view that in assessing standing, particularly standing, which is created by a congressional mandate,

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one should look, I'm thinking of this Pacayo case, I may not be pronouncing that right, which was clearly designed to protect people from misinformation in their credit files, but it doesn't protect everybody against all misinformation.

[00:03:08] Speaker 04:
Certainly that's... It does seem to be a question of degree, and I have to say that the

[00:03:16] Speaker 04:
Your epic does not seem central to the particular interests protected here.

[00:03:24] Speaker 02:
Well, as I indicated earlier, our mission is to inform and educate the public about emerging privacy issues.

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We are named the Privacy Information Center.

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But a third point is that we have previously pursued privacy impact assessments issued by other federal agencies.

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In fact, there are two opinions from district courts in this circuit

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concerning our Freedom of Information Act cases precisely to obtain the type of information that we saw here.

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What was of such great concern to us and the reason that we brought the action is that the Presidential Advisory Commission simply failed to undertake the privacy impact assessment and to publish the privacy impact assessment, which we would routinely be able to access under Section 208.

[00:04:11] Speaker 02:
And to the standing point, also under this circuit's previous decision in PETA, which was just two years ago, we have both the type of harm that the statute contemplates and, of course, we also have to expend additional resources because the commission failed to do what it was supposed to do.

[00:04:29] Speaker 04:
Now, the second- I think if you're injured in your mission, the spending of resources to offset that injury

[00:04:36] Speaker 04:
is unnecessary in cases of so sad.

[00:04:40] Speaker 04:
But anyway, go ahead.

[00:04:41] Speaker 02:
Well, I take your point.

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And the other standing issue before the court today is informational standing, which we think is established under both of the circuit's recent opinions and Friends of Animals versus Jewel.

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The lower court relied on the second case, which in fact did not find standing, but it was sufficient in terms of the test that was set out

[00:05:05] Speaker 02:
to find informational standing to epic, we also argue in our briefs that under the first Friends of Animals case, where standing was found under Section 10 of the Endangered Species Act, we would certainly have standing as well.

[00:05:19] Speaker 04:
The third standing- The court there said it appeared that this would be of real use to the

[00:05:27] Speaker 04:
plaintiff and the plaintiff's role in the enforcement of that statute seem to be much more central than your role in the enforcement of this particular provision.

[00:05:39] Speaker 02:
Well, as to our interest, it is central to our mission.

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And I will say that this data collection undertaken by the Presidential Advisory Commission was absolutely unprecedented.

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There has never been a similar effort to gather state voter records, detailed records, social security numbers, military service, home address, prior voting information.

[00:06:01] Speaker 04:
Well, you speak of its breadth.

[00:06:02] Speaker 04:
And perhaps you're right on that.

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But its potency seems to be very low.

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You speak of demands, but they requested and they seem to have no power to do anything more than request.

[00:06:13] Speaker 02:
Well, under the terms of the Privacy Impact Assessment, coming back to Section 208, those factors which I just described, which concern the scope of the request and the detail of the request and the risk of harm, are precisely the factors that the Commission was expected to consider prior to the collection of data.

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I understand that.

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So that would be another key consideration in this case.

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The Section 208 obligation to publish the Privacy Impact Assessment is an obligation that occurs before the data collection takes place.

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And that simply did not happen here.

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So if you do have standing, am I correct in thinking whether the advisory committee has an obligation to issue a PIA?

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depends upon whether it's an agency within the means of the e-government act, correct?

[00:07:08] Speaker 02:
Well, that's correct.

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And we think that's the core issue here, because the lower court relied on the 2009 CRU test, which was a Freedom of Information Act case, that had incorporated the SUSE doctrine, which looks at the substantial independent authority of an agency.

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We think that wasn't necessary here.

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In fact, it was incorrect.

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The relevant definition for the privacy impact assessment obligation is found in Title 44.

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And there in 3502 in the code, it says simply, an establishment in the executive branch of government.

[00:07:44] Speaker 03:
Well, we've already said, though, that 3502

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clarifies 551 and essentially equates, I think, 3502 and 552.

[00:08:02] Speaker 02:
Well, no.

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In fact, we think there's a sharp distinction between the Title 44 definition and the 552F definition, which the government relies upon in its briefing.

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And what's the sharp distinction?

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Well, the sharp distinction is that the 552F definition

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relies on the SUSE doctrine and emerges in Freedom of Information Act cases where there's a competing constitutional concern about the ability of people close to the president to give confidential advice to the president.

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And so when in SUSE, a Freedom of Information Act case, the court said we have to look to that interest, that doctrine was incorporated

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by means of the 1974 legislative history as to 552F.

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But it did not touch 551, and it most certainly did not touch Title 44.

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There's no competing interest here in the confidential advice to the president.

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In fact, as this court had suggested in SB, quite the opposite.

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I'm sorry, SB is a 1996 opinion of the circuit.

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The court actually draws the distinction and says, whereas in the Freedom of Information Act realm, we're concerned about the confidential advice to the president, and we look more closely at the nature of the agency, that issue is simply not present here.

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Presumably, whatever the commission is doing, it's doing subject to FACA, and the recommendations it will make will be public recommendations.

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So we think this is the mistake of the lower court.

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And also the government's arguments can largely be distinguished.

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It went down the 552F road.

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It didn't need to.

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You have judicial review in chapter 7.

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You have review under section 701 and 702.

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And we think that's sufficient to reach the outcome which we're seeking, which is the issuance of the preliminary injunction.

[00:09:57] Speaker 03:
When you say it may be sufficient, that's because of the trail that got you there.

[00:10:05] Speaker 03:
I think you've already answered it, but the question went to whether there's really any difference between 552 and 351.

[00:10:16] Speaker 02:
Well, Judge Ginsburg, I think the difference is in part found in two cases in which you were on the panel, Armstrong 1, the 1991 case, and Armstrong 3, the 1996 case.

[00:10:26] Speaker 02:
You're talking Armstrong 3, right?

[00:10:28] Speaker 02:
Right.

[00:10:28] Speaker 03:
Okay.

[00:10:30] Speaker 03:
The latter didn't play much role in your argument, as I recall.

[00:10:33] Speaker 03:
Well, only to establish... In fact, you kept saying Armstrong 1 without reference to the other one.

[00:10:37] Speaker 02:
Right.

[00:10:37] Speaker 02:
Well, Armstrong 1 is significant because you found judicial review under Chapter 7, which is to say through 701, of the record-keeping practices of the National Security Council, which subsequently you decided in Armstrong 3 was nonetheless not subject to obligations under the freedom of information.

[00:10:56] Speaker 02:
There have been some intervening changes in the situation.

[00:10:59] Speaker 02:
Yes, but I believe that Armstrong 1 is still good law, and I believe it established that you can have an agency subject to judicial review under Chapter 7, even though it may not be subject to review through the agency definition in 552F.

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And if I may make a final point here, of course, the four-factor test was briefly considered by the lower court.

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The lower court looked simply at the question

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of whether the commission had an obligation under Section 208 of the Government Act to undertake the Privacy Impact Assessment.

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The lower court concluded that the commission was not an agency and therefore did not have that obligation.

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But of course, in addition to the fact we think that holding was incorrect,

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We think the other three factors also weigh in Epic's interest.

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There's clearly the irreparable harm by the failure to publish the Privacy Impact Assessment.

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The balance of equities in this case is not simply Epic's interest in obtaining the Privacy Impact Assessment as against the Commission's interest in doing its work.

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The balance of equities must also necessarily consider the privacy interests of the voters whose personal data is being collected

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by the Commission.

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So you see, if you look at the balance of equities analysis, it's not just the Commission versus Epic.

[00:12:20] Speaker 02:
It's the privacy of the Commission.

[00:12:21] Speaker 03:
The information in question is already publicly available, right?

[00:12:24] Speaker 02:
Well, we dispute that characterization.

[00:12:27] Speaker 03:
Well, the request is for publicly available information.

[00:12:28] Speaker 02:
We understand that.

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But the request is also for detailed voter history information.

[00:12:33] Speaker 02:
It's also for social security information.

[00:12:35] Speaker 03:
Do you regardless of whether it's publicly available?

[00:12:37] Speaker 02:
It's ambiguous, Your Honor.

[00:12:39] Speaker 02:
The procedure that the states would normally follow for a similar request is quite elaborate.

[00:12:44] Speaker 02:
If you or I or even a political committee wanted to get this type of voter data from a state agency or a state election official, we would have to fill out forms, we'd have to establish security procedures for receiving the data, and those requests would then be reviewed by the election official to determine which information the state could produce.

[00:13:04] Speaker 03:
Is there any indication that any state will provide

[00:13:07] Speaker 03:
non-public information in response to this request?

[00:13:11] Speaker 02:
It's a difficult determination for us to make because we don't know in fact which data the states have provided to the Commission, which is of course part of the purpose of the privacy impact assessment.

[00:13:22] Speaker 03:
Do we know that any state has provided information?

[00:13:24] Speaker 02:
I believe some states have provided.

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Certainly Arkansas in the first instance provided the data, and when we filed the initial complaint,

[00:13:32] Speaker 02:
We had also established that the technique that the commission had used to receive the data was not secure.

[00:13:39] Speaker 02:
In fact, if you went to the website.

[00:13:41] Speaker 03:
Thank you for pointing it out to me.

[00:13:45] Speaker 02:
We appreciate that.

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But you see, that demonstrates on the record in this case

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that the concern we have is not theoretical.

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We're not talking about what might happen to data that is not protected under the requirements of a Privacy Impact Assessment.

[00:14:00] Speaker 02:
We can actually point to the record in this case and show what happened when the Commission collected the data, and we are still in the dark.

[00:14:08] Speaker 02:
We still don't know if the Commission has answered the questions that Section 208 requires.

[00:14:12] Speaker 02:
How will the data be used?

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who will have access to it, for what purpose is it being collected?

[00:14:18] Speaker 02:
Have they created a Privacy Act system of records that requires a Privacy Act notice?

[00:14:24] Speaker 02:
None of these questions have been answered by the Commission, and we think this is precisely the reason that the preliminary injunction is necessary.

[00:14:32] Speaker 03:
If I may go... Well, it makes it difficult for you to show irreparable harm when you don't know what's happened.

[00:14:38] Speaker 02:
Well, the irreparable harm flows from the informational injury, which was the failure to obtain the privacy impact assessment, which would have detailed the Commission's compliance with all of these requirements.

[00:14:48] Speaker 03:
Well, I guess I'm coming to the balance of equities then.

[00:14:50] Speaker 02:
Yes.

[00:14:51] Speaker 02:
That's also in the balance of equities.

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And finally, if I may just speak to the fourth factor, as I said, the court below barely touched upon these issues, but they're all relevant to your consideration for a preliminary injunction.

[00:15:03] Speaker 02:
The public interest here, frankly, is quite substantial.

[00:15:06] Speaker 02:
As we wrote in our initial complaint to the court, this nation doesn't face a crisis of data breaches and identity theft.

[00:15:16] Speaker 02:
We open the paper every day and we read about the improper breach of personal data.

[00:15:23] Speaker 02:
This data, voter data, is the most sensitive data in our form of government.

[00:15:27] Speaker 02:
And we know on the record that it was also the target of a foreign adversary during the 2016 election.

[00:15:34] Speaker 02:
It's actually difficult for us to imagine a case where there's a more compelling claim to undertake, complete, and publish the Privacy Impact Assessment

[00:15:44] Speaker 02:
that Section 208 of the Government Act requires.

[00:15:49] Speaker 02:
That, of course, is the reason that we've brought this case, and that's the reason that we're seeking the preliminary injunction.

[00:15:57] Speaker 05:
All right.

[00:15:58] Speaker 05:
Thank you.

[00:15:58] Speaker 05:
Thank you.

[00:15:58] Speaker 05:
Mr. Tenney?

[00:16:05] Speaker 01:
Thank you.

[00:16:05] Speaker 01:
May it please the Court?

[00:16:06] Speaker 01:
I'd like to start on the standing issue.

[00:16:09] Speaker 01:
Epic is not injured by the agency, not agency, the commission action that it is seeking to enjoin in this case.

[00:16:17] Speaker 01:
And so its claim is that it has an independent injury from the process that would have, in its view, appropriately led up to that decision.

[00:16:26] Speaker 01:
And as the earlier colloquy pointed out, in such circumstances, the Supreme Court and this court have demanded that the cognizable injury that you claim in information be one that's specifically granted to someone in your position.

[00:16:41] Speaker 01:
And the Supreme Court said in Lujan, for example, that if you're seeking standing because you think an environmental impact statement should have been prepared and you live on the opposite side of the country from the proposed facility that would be created, then that's not a sufficient basis for standing.

[00:16:58] Speaker 01:
And in this case, EPIC, because they've in this court not asserted that they have any interest in the actual action that is at issue that they're seeking to enjoin here, they're quite similarly situated to an entity

[00:17:11] Speaker 01:
that lives on the opposite end of the country from an environmental project.

[00:17:14] Speaker 04:
Suppose they had members, I understand they don't have members, but suppose they had members whose information as voters was being collected.

[00:17:27] Speaker 01:
Well, I mean, the district court held in the alternative that those members might not have standing to challenge the action because any harm to them would be speculative based on the publicly available nature of the data.

[00:17:41] Speaker 01:
But if your question goes to suppose they had

[00:17:44] Speaker 01:
a member who actually would have standing to enjoin or to challenge the action that is that they're trying to enjoin then of course they could they could say one of the reasons that that action was unlawful was the failure to publish a privacy impact assessment and they could raise their challenge that way the supreme court and this court have made quite clear that in if you if you assert this sort of procedural injury the redressability prong of standing is relaxed such that

[00:18:10] Speaker 01:
You don't have to demonstrate that if they had done the assessment, they wouldn't have collected the data at the end of the day.

[00:18:15] Speaker 04:
But some of the cases do seem to allow an organization to have organizational standing because it's interested in some way in the activity of the agency in question.

[00:18:31] Speaker 04:
And EPIC seems to be interested and has manifested its interest.

[00:18:37] Speaker 01:
Yeah, there are cases that have held that they're standing for informational purposes.

[00:18:44] Speaker 01:
A mere interest in the subject matter of the agency or commission in this case proceeding has not been sufficient.

[00:18:51] Speaker 01:
And so you can draw contrast if you start from

[00:18:57] Speaker 01:
I'm sorry.

[00:18:57] Speaker 01:
Go ahead.

[00:18:59] Speaker 01:
I mean, the informational injury cases began with, or at least are now reliant on the Supreme Court's decision in FEC v. Akins, which was an election case in which there were people who wanted to participate in the election.

[00:19:16] Speaker 01:
And Congress had made quite clear that there were certain disclosures that should be made so that

[00:19:22] Speaker 01:
voters and other participants in the electoral process would have the information they need to cast an informed ballot.

[00:19:28] Speaker 04:
And similarly- Yeah, that's obviously the strong case.

[00:19:33] Speaker 04:
But then, as the usual evolution of judicial decisions, it goes down, down, down in terms of the degree of concern that the plaintiff party has.

[00:19:47] Speaker 01:
I mean, I do think that's a strong case.

[00:19:51] Speaker 01:
I mean, at the other end of the spectrum, which I think is much closer to where we are here, of course, you have the discussion in Luhan v. Defenders of Wildlife about an organization that has an interest in the environment but lives on the opposite end of the country from the project that's at issue, or some, or the Earth Island Institute, where someone had an interest, again, in the agency

[00:20:10] Speaker 01:
engaging in a notice and comment process and providing more information, but that wasn't held to be sufficient.

[00:20:15] Speaker 01:
And obviously you have to align the cases in the middle, but neither of the FEC is a case from this court which also involved elections, but it was somebody who wasn't trying to participate, but was trying to sort of get more enforcement, and this court held that that was insufficient.

[00:20:32] Speaker 01:
as a basis for standing.

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And then there's the Friends of Animals case that was cited earlier.

[00:20:40] Speaker 01:
And there, too, a key distinction is that Congress made quite clear that it wanted to facilitate participation in this process, the agency's process in that case of granting permits, and it wanted to facilitate

[00:20:55] Speaker 01:
participation by the sorts of groups who were filing that lawsuit, by advocates for animals.

[00:21:01] Speaker 01:
And Congress had strong language repeated several times in the statute, which was quoted and italicized by this court about how the information should be made available at every stage of the process, that both the application for the permit and the agency's determination of how to look at that information would be made available.

[00:21:21] Speaker 01:
And you contrast that here, we have a statute

[00:21:25] Speaker 01:
whose express statement of purpose is to ensure sufficient privacy for personal information.

[00:21:34] Speaker 01:
And you have a plaintiff whose personal information is not at issue.

[00:21:41] Speaker 01:
And it's clear that the purpose of the privacy impact assessment is not to provide information to the public.

[00:21:49] Speaker 01:
This isn't fundamentally a disclosure statute.

[00:21:51] Speaker 01:
This is a statute to make sure that the government, when it applies, we don't think it does apply here, but when taking their allegations is true for standing purposes, this is a provision that applies to require the government to take into account

[00:22:07] Speaker 01:
these privacy concerns when the government is making its own decisions, all to the end of getting better government decisions and having better decisions that make sure that the government is accounting for the interests of individuals who are not before the court in this case.

[00:22:22] Speaker 01:
whose privacy would be at issue with these statements.

[00:22:25] Speaker 01:
And there's not a case like that in which somebody has not had, in which there is something that's made for internal government decision making on an issue in which the plaintiff does not have a cognizable interest.

[00:22:38] Speaker 01:
and informational standing for that.

[00:22:40] Speaker 01:
You can't come into court, you know, if you say I'm interested in small business, the agency has to prepare a regulatory flexibility statement, and you know, I'd like to look at that and make some arguments about that.

[00:22:51] Speaker 01:
It's never been thought that you could come into court and challenge an agency action that doesn't actually cause you any cognizable injury with a claim like that.

[00:22:59] Speaker 01:
And that's really what's happening here.

[00:23:02] Speaker 01:
This is a, this is a, this is a,

[00:23:04] Speaker 01:
much more in the category of generalized grievance.

[00:23:06] Speaker 01:
They have an interest in what's going on, and they want to weigh in.

[00:23:10] Speaker 01:
But they're just not the proper plaintiffs here.

[00:23:13] Speaker 05:
How about their argument about their self-inflicted budget choices, as I see it anyway?

[00:23:20] Speaker 05:
I see a world of difference between this case and PETA.

[00:23:23] Speaker 01:
I agree with that.

[00:23:26] Speaker 01:
I mean, there are several differences.

[00:23:29] Speaker 01:
One obvious difference is that in PETA, at least, they were trying to

[00:23:34] Speaker 01:
That was a cause of action for agency action unlawfully withheld.

[00:23:39] Speaker 01:
And they were saying the agency has to do something affirmative.

[00:23:43] Speaker 01:
And if they do that, then there's all this work that the agency would be doing that we have to sort of substitute for because we're doing all this other work.

[00:23:52] Speaker 01:
There's nothing like that here.

[00:23:53] Speaker 01:
They're trying to prevent the commission from doing something.

[00:23:57] Speaker 01:
and they haven't taken on some burden.

[00:24:04] Speaker 01:
So I agree those cases are quite different.

[00:24:07] Speaker 04:
I don't have a... I think their argument is that in terms of protecting privacy generally, the activities of the commission represent, regardless of what they do, a setback to that mission.

[00:24:26] Speaker 01:
Um, right.

[00:24:28] Speaker 01:
I mean, to their sort of abstract mission, but I don't think that they're

[00:24:33] Speaker 01:
they don't have something concrete that they're doing that's being interfered with.

[00:24:38] Speaker 01:
If it were true that any time you said, we're an agency, we're an organization that likes privacy, and this is a setback to privacy, so we have standing, then all the environmental plaintiffs could say, we support a better environment, and this agency is taking steps that will make the environment worse, so we have standing.

[00:24:58] Speaker 01:
At that level of generality, they really can't.

[00:25:01] Speaker 01:
They can't really fit themselves in any of the cases.

[00:25:05] Speaker 01:
I see my time is almost up.

[00:25:08] Speaker 01:
I don't have a lot to say on the merits.

[00:25:10] Speaker 01:
I guess I would just mention the effort to draw a distinction between the E-Government Act and the FOIA.

[00:25:16] Speaker 01:
Those statutes are reproduced on pages A7 and A8 of our appendix.

[00:25:20] Speaker 01:
And you'll see the language there.

[00:25:22] Speaker 01:
And you can't draw fine lines between those.

[00:25:25] Speaker 01:
It's quite clear.

[00:25:26] Speaker 01:
I mean, just in any context, forgetting which of these statutes we're talking about,

[00:25:30] Speaker 01:
Federal advisory committees have never been thought to be agencies that are subject to suit under the APA, to the FOIA, or to any other statutes that are applicable to agencies.

[00:25:43] Speaker 01:
And this is just a classic advisory committee.

[00:25:45] Speaker 01:
It says in the executive order itself that it's solely advisory, and they're tasked with preparing a report for the president.

[00:25:52] Speaker 01:
So we think that although we differ with the district court on standing, we think the district court was quite right

[00:25:58] Speaker 01:
if you do reach the merits.

[00:26:00] Speaker 03:
What's your answer to Mr. Rodenberg's point about it's really Chapter 7 that we should look to for agency definition?

[00:26:12] Speaker 01:
The APA uses the same words in section 551 and section 701, I believe.

[00:26:20] Speaker 01:
Those were originally actually literally the same language, and then they were split in a non-substantive amendment when the judicial review provisions and the substantive provisions were split up.

[00:26:31] Speaker 01:
There's no indication that Congress intended to take the 551 definition, which was the very definition that was at issue in SUSE,

[00:26:39] Speaker 01:
which established the Substantial Independent Authority test, there's no indication that Congress intended to jettison that just when it recodified it into two separate sections, and they haven't cited any case for that.

[00:26:51] Speaker 03:
Why is your principal reliance then on the, not on SUSE, but on Y.R.B.

[00:26:57] Speaker 03:
Bush and Armstrong and so on?

[00:26:59] Speaker 01:
Well, I mean, Suzy set out the test, substantial independent authority.

[00:27:04] Speaker 01:
That test was applied in those other cases.

[00:27:07] Speaker 01:
And I mean, either way you look at it.

[00:27:11] Speaker 03:
The way your brief portrays them, I think, correctly, there are differences in the elements between Suzy on the one hand and the other cases.

[00:27:22] Speaker 01:
I mean, if anything, the other cases, and I think this was discussed in the Dong V. Smithsonian Institution case, if anything, the FOIA definition says, for purposes of the FOIA, the term agency shall include, and then it rattles off a new list of things.

[00:27:43] Speaker 01:
uh... you know if anything before cases are adding something i think was how this court put it in and on but you know under any of these definitions the reason we set up the brief that way is that

[00:27:55] Speaker 01:
Susie said substantial independent authority.

[00:27:58] Speaker 01:
We don't think this agency has substantial independent authority.

[00:28:01] Speaker 01:
Whichever statute you put that under, we think the result is quite the same.

[00:28:06] Speaker 01:
There's no case under any of these provisions.

[00:28:09] Speaker 01:
There's a citation of Armstrong.

[00:28:11] Speaker 01:
Armstrong did not say anything like

[00:28:14] Speaker 01:
You can have a cause of action under the APA against someone who doesn't have substantial independent authority.

[00:28:20] Speaker 01:
There's no language, anything like that in Armstrong.

[00:28:23] Speaker 01:
Armstrong was a cause of action, among others, against the Archivist of the United States for not taking action to address alleged deficiencies in record keeping.

[00:28:33] Speaker 01:
The Archivist of the United States

[00:28:35] Speaker 01:
is an agency for purposes of the APA, so there wasn't a fight in that case about whether the APA Section 701 applied.

[00:28:42] Speaker 01:
There's no holding there to talk about.

[00:28:47] Speaker 01:
The NEC was involved, but the way the Federal Records Act works, the head of a government entity has some responsibilities, and then the archivist also has responsibilities.

[00:29:00] Speaker 01:
And so if you thought that the archivist was inadequately doing what the archivist was supposed to do, you could file an APA cause of action against the archivist.

[00:29:07] Speaker 01:
And so there's no discussion in the case about whether you could file a cause of action against the NSC under section 701.

[00:29:16] Speaker 01:
If you look at the case, you won't find that.

[00:29:19] Speaker 01:
And then Armstrong III?

[00:29:21] Speaker 01:
I mean, these are all follow-ons of the same case.

[00:29:24] Speaker 03:
I thought that made more clear that the director was not amenable, that the NSC was not an agency.

[00:29:33] Speaker 01:
It has been made clear.

[00:29:34] Speaker 01:
I forget in which case.

[00:29:35] Speaker 01:
I apologize for that.

[00:29:37] Speaker 01:
But our fundamental point here is just that the advisory committees under any of these statutes are not agencies and the district court was quite right to hold that if you reach the question.

[00:29:48] Speaker 01:
Are there any further questions?

[00:29:50] Speaker 01:
Thank you.

[00:29:51] Speaker 05:
Does Mr. Brottenberg have any time?

[00:29:54] Speaker 05:
Why don't you take a minute.

[00:29:57] Speaker 02:
Thank you.

[00:29:57] Speaker 02:
Three brief points.

[00:29:59] Speaker 02:
Contrary to counsel's claim, in fact, this court has found that a presidential advisory commission is subject to the APA.

[00:30:06] Speaker 02:
That was the FACA enforcement in comic regor, which was 1999.

[00:30:11] Speaker 02:
Secondly, the counsel is describing a Privacy Act-style statute to argue that Epic doesn't have standing.

[00:30:18] Speaker 02:
Section 208 has a very different purpose.

[00:30:20] Speaker 02:
It's the publication about the government's practices

[00:30:24] Speaker 02:
that are at issue in Section 208, and that's, of course, core to EPIC's mission, which goes to my third point regarding application of PETA to this case.

[00:30:33] Speaker 02:
It wasn't a generalized harm or self-inflicted expenditure.

[00:30:37] Speaker 02:
When we learned that the Commission had not undertaken the Privacy Impact Assessment,

[00:30:42] Speaker 02:
Not only did we seek related information through the FOIA, we contacted the state secretaries to warn them that this action had not been completed, and we also launched an internet-based campaign to alert voters that their information was not being protected as required by Section 208.

[00:31:00] Speaker 02:
So we believe that we fall quite clearly in the PETA zone for standing as an organization, and also under Friends of Animals for informational standing.

[00:31:12] Speaker 04:
Thank you.