[00:00:02] Speaker 00: Case number 20-50-06, Cause of Action Institute Appellant versus Office of Management and Budget, White House and United States Department of Agriculture. [00:00:12] Speaker 00: Mr. Mulvey for the Appellant, Mr. Pham for the Appellates. [00:00:16] Speaker 04: Good morning, Council. [00:00:17] Speaker 04: Mr. Mulvey, please proceed when you're ready. [00:00:19] Speaker 03: Good morning, Your Honors. [00:00:20] Speaker 03: May it please the Court. [00:00:22] Speaker 03: My name is Ryan Mulvey and I represent the Appellant Cause of Action Institute. [00:00:27] Speaker 03: This case presents the question of whether Internet browsing history records are subject to agency control and therefore, disclosable under the Freedom of Information Act. [00:00:37] Speaker 03: As this court explained in Judicial Watch v. Secret Service, the four-factor BRCA test is the default standard for analyzing agency control in the usual case. [00:00:47] Speaker 03: And here, three of the four BRCA factors cut strongly in favor of agency control. [00:00:53] Speaker 05: Before you get to that, when you talk about how they cut strongly, [00:00:57] Speaker 05: You understand this is a de novo review. [00:01:01] Speaker 05: That's correct, your honor. [00:01:02] Speaker 05: So we're not bound by the district court's conclusion that those three factors cut in your favor. [00:01:08] Speaker 05: That is true. [00:01:09] Speaker 05: I'm not at all sure that they do is the reason I'm raising this. [00:01:13] Speaker 05: You may wish to tell us why this meets each of those factors. [00:01:17] Speaker 05: Don't assume that we're going to calmly accept what the district judge found in your favor on that. [00:01:25] Speaker 03: I accept that, Your Honor, and recognize it. [00:01:29] Speaker 03: I think that the record supports the district court's conclusion as to three of the four factors, and I do intend to address those. [00:01:37] Speaker 03: So at least with respect to the first factor, the intent to retain or relinquish control. [00:01:43] Speaker 03: Here, the record is clear that the appellee agencies set retention setting for browsing histories. [00:01:50] Speaker 05: With the record, the JA at least ambiguously contains language that persons using certain [00:01:55] Speaker 05: devices at least, and I think it probably extended everybody, could delete these sooner than the time set by the agency. [00:02:04] Speaker 05: The time set by the agency was an automatic deletion, but some of them that didn't work on them, they did delete them manually, and as far as the record shows, anybody could delete them sooner than that time. [00:02:16] Speaker 05: That time was a drop dead time, so that the agency [00:02:21] Speaker 05: wasn't retaining control if the individual had the ability and the authority apparently to delete the browsing history sooner would [00:02:33] Speaker 03: So you're right, Your Honor, that there is some ambiguity as to the browsers on cell phone devices, on mobile devices. [00:02:43] Speaker 03: I think it is clear, though, with respect to desktop computers, that the browsing settings were controlled by the agency and individual employees. [00:02:53] Speaker 05: As far as I can tell from the record, and maybe I'm missing something, that was the time at which there was going to be an automatic deletion. [00:03:00] Speaker 05: It did not specify that the individual user could not manually delete prior to the expiration of the automatic deletion. [00:03:12] Speaker 05: Does it? [00:03:12] Speaker 03: No, there is some ambiguity there, but I think it's right to assume that within the retention period, an individual employee could have the authority to manually delete a record, but I'm not sure that that's dispositive to intent to retain a relinquished control. [00:03:28] Speaker 05: It would certainly seem to weaken the force of your statement that clearly the agency had retained control, wouldn't it? [00:03:35] Speaker 03: Well, I think an important consideration there with respect to the retention settings is that an individual employee would not have authority to expand retention of the records. [00:03:45] Speaker 05: No, no, no, no, no. [00:03:48] Speaker 05: That seems to be the record. [00:03:49] Speaker 05: But as far as we can tell from the record, he had the authority to delete. [00:03:53] Speaker 05: So doesn't that fly in the face of a conclusion that the agency retained all control over that disposition? [00:04:02] Speaker 03: Not when you're talking about a record, I think, Your Honor, that isn't going to be subject to something like the Federal Records Act. [00:04:09] Speaker 03: So this circuit has made clear in both Bureau of National Affairs and Consumer Federation of America that records management rules, including the disposition of a record, [00:04:20] Speaker 03: are not going to be dispositive to the control question and whether a particular record is subject to the FOIA. [00:04:26] Speaker 03: The FOIA's definition of an agency record and what would be subject to disclosure is broader than the definition of a federal record. [00:04:35] Speaker 03: in that respect, so long as the record exists at the time a request is filed, then it could be subject to disclosure. [00:04:46] Speaker 03: And again, it's true that the agency has given individual employees [00:04:51] Speaker 03: within the retention period, it seems, the authority to delete individual browsing history entries. [00:04:59] Speaker 03: But that's within the agency's authority to grant that discretion. [00:05:02] Speaker 03: And I'm not sure that that destroys the overall intent. [00:05:07] Speaker 03: There's no reason that the agency couldn't have decided to deprive individual employees of their ability [00:05:16] Speaker 03: to delete these records. [00:05:18] Speaker 03: And furthermore, there's nothing in the record regarding whether or not the particular internet browsing history records at issue and the officials identified in Cause of Action Institute's requests have in fact attempted to delete these files. [00:05:38] Speaker 03: Neither of the agencies make clear that they applied the control test to internet browsing history records that they actually reviewed. [00:05:47] Speaker 03: That's probably. [00:05:55] Speaker 04: Oh, it looks like we lost a connection. [00:05:57] Speaker 04: Yeah. [00:06:00] Speaker 05: I had been hearing noises in the background. [00:06:02] Speaker 05: Had you all been hearing a ringing sound before he went [00:06:07] Speaker 04: I only heard the chimes at 10 o'clock. [00:06:09] Speaker 04: I think there was. [00:06:10] Speaker 05: Oh, is that what that was? [00:06:11] Speaker 04: I believe so. [00:06:14] Speaker 04: And do we have a way to bring back Mr. Mulvey? [00:06:19] Speaker 00: Chief Judge, I am going to have him call him so he can participate by phone. [00:06:24] Speaker 05: OK. [00:06:24] Speaker 05: Thank you. [00:06:34] Speaker 05: He seems to be frozen in place. [00:06:36] Speaker 05: OK. [00:06:51] Speaker 04: And we can stop the timer running if you have the ability to do that. [00:07:11] Speaker 00: I have a connection with Mr. Moldy. [00:07:13] Speaker 00: He's going to be joining us by phone. [00:07:19] Speaker 03: I restarted my Zoom. [00:07:22] Speaker 03: I apologize for that. [00:07:24] Speaker 03: Okay. [00:07:25] Speaker 03: I'm not quite sure what happened there. [00:07:31] Speaker 03: I'm sorry, now I've forgotten where I was. [00:07:35] Speaker 05: You may want to move on to the other parts of the test anyway at this point. [00:07:38] Speaker 05: I'm not trying to take over, Chief. [00:07:41] Speaker 03: Sure, no, I appreciate that, Your Honor. [00:07:43] Speaker 03: And if there's any aspect of that that I haven't covered, I'm happy to answer a follow-up question. [00:07:50] Speaker 03: Turning to the second Berkha factor. [00:07:53] Speaker 03: The same agencies, OMB and USDA, did concede that they have the ability to use internet browsing histories. [00:08:01] Speaker 05: I question whether they use it within the terms of the act. [00:08:05] Speaker 05: The use they referred to making of it would be in the case of a disciplinary investigation or something, rather than in the normal business of the agency, right? [00:08:15] Speaker 03: Well, Your Honor, [00:08:21] Speaker 05: having a Zoom problem again. [00:08:22] Speaker 04: Yeah. [00:08:24] Speaker 04: Maybe we can have Mr. Mulvey continue by telephone instead of by video if it's going to be a repeating issue. [00:08:34] Speaker 00: Chief Judge, I am calling Mr. Mulvey again. [00:08:37] Speaker 05: Thank you. [00:09:48] Speaker 00: Chief Judge, Mr. Mulvey has now joined us by phone. [00:09:53] Speaker 04: Okay. [00:09:54] Speaker 04: Please, Mr. Mulvey, if you're on, proceed with your response to Judge Santel on the use question. [00:10:00] Speaker 05: Let me go just a little farther with what I was going to say about use in terms of the use in the BRCA analysis. [00:10:08] Speaker 05: If, by way of analogy, if somebody brought in in the physical world as opposed to the cyber world, [00:10:14] Speaker 05: a some contraband uh uh pornography or something evidencing espionage the agency could certainly make use of that in a disciplinary or even criminal investigation but that would not be used within the terms of the burka analysis would it am i amused can you hear me your honor yes yes um well i think it would uh your honor do you think it um okay it would be a [00:10:42] Speaker 03: It would be a separate question whether or not a record that's used in that way would then become exempt, but whether or not a statutory exemption would apply, I think is a secondary question, the foundational question. [00:10:56] Speaker 05: No, even just for the BRCA analysis, is that a use in the terms of what the court meant in the BRCA analysis? [00:11:04] Speaker 03: I think so. [00:11:05] Speaker 03: It's not a... [00:11:07] Speaker 03: a disciplinary investigation would be an operation of the agency. [00:11:14] Speaker 05: Would it be such as would make this a record of the agency? [00:11:18] Speaker 05: That's the question here is we're trying to determine whether this is a record of the agency and if they only use the record going to make the agency could ever make of it would be evidentiary use in a proceeding outside the agency's normal business. [00:11:31] Speaker 05: Is that what the Berkitt test was designed to ask as far as making this a record? [00:11:37] Speaker 05: Should that make it a record? [00:11:38] Speaker 05: Would that make a porn book that the employee brought in part of a record of the agency because they could use it against him in a disciplinary? [00:11:48] Speaker 03: I think it's going to be a fact-specific analysis. [00:11:53] Speaker 03: I think part of the difference with that example, Your Honor, is that all of the other factors would cut against agency control. [00:12:03] Speaker 03: And you would also have a question as to whether it has been obtained under the first prong of tax analysts. [00:12:10] Speaker 03: Here, I mean, the government didn't [00:12:14] Speaker 03: really raise any dispute as to whether the first prong of tax analysts had been uh uh satisfied um there's an acknowledgement in the district court uh uh repeated this as well that these records are created within the agency and again this is not this is not a review for error this is a de novo review we're making as to whether this is an agency record and we're right and i i understand that [00:12:40] Speaker 03: I understand that, Your Honor, but these records are created automatically in the course of agency employees undertaking their daily tasks. [00:12:49] Speaker 04: What's the use that you're relying on here? [00:12:56] Speaker 03: Well, I think part of the... Well, first of all, we would suggest that you needn't [00:13:03] Speaker 03: be dispositive. [00:13:05] Speaker 03: So if three of the four BRCA factors cut in favor of control, then actual use under the third factor isn't going to be dispositive. [00:13:14] Speaker 03: There's also a background issue here, which pertains to the issue of discovery in that, as both Appellant and amicus have pointed out, there is nothing in the record about how the actual individual employees here, the officials identified in cause of actions request, [00:13:33] Speaker 03: use their internet browsing history records. [00:13:35] Speaker 03: That's completely absent, that sort of evidence from any of the declarations that were offered by the government. [00:13:43] Speaker 02: Why, Mr. Mulvey, why is that the relevant inquiry as opposed to how the agency itself uses this record? [00:13:52] Speaker 03: Well, agencies, and I believe it was, Judge Santel put it this way in his opinion in CEI versus OSTP, [00:14:01] Speaker 03: An agency acts through its employees and I don't believe that there's any case law in FOIA. [00:14:10] Speaker 03: to suggest that we ought to distinguish between a record creator and others within the agency for the purposes of addressing actual use under the third burka factor? [00:14:21] Speaker 02: I mean, browser histories are, I think, in some ways a bit unusual type of record, if they even are a record, right? [00:14:27] Speaker 02: Because a person makes internet searches for whatever purpose, you know, to find restaurant reservations, to research something they're working on. [00:14:35] Speaker 02: And the record itself is created by the browser or by the agency settings of the browser, right? [00:14:42] Speaker 02: It's not creation of a record in the way as say writing a memo or something like that. [00:14:48] Speaker 02: I mean, do you think that makes a difference here? [00:14:50] Speaker 03: Well, I think it does particularly for whether or not Bureau of National Affairs and the totality of the circumstances test ought to be the appropriate one. [00:15:01] Speaker 03: Now, of course, we argue that [00:15:03] Speaker 03: Berka, which is the default in this circuit, is most appropriate. [00:15:08] Speaker 03: But because the record is created automatically by an agency system, the internet browser on an agency computer, that sort of quintessential aspect of a personal record is totally absent, namely that the record was created for the purpose of personal use. [00:15:30] Speaker 04: But we already know, for example, from our cases that [00:15:33] Speaker 04: I mean, my law clerks have no idea what this even is, but I think some of us here can remember the days in which you got a note that told you that you got a phone call from a particular number and needed to return that call. [00:15:45] Speaker 04: And that's not used for personal purposes, that's used for business purposes. [00:15:49] Speaker 04: And it is in some physical sense, a record, because it's a document that documents something that happened in the course of business. [00:15:55] Speaker 04: But we still don't consider that to be an agency record for purposes of FOIA. [00:15:59] Speaker 04: And it's hard for me to see how, if that's not an agency record, how a mere history that a person puts, that a browser puts together of sites that have been visited, as to which there's no indication that the agency, QAHA agency, gives any use to that whatsoever, nonetheless is a record. [00:16:17] Speaker 03: Well, I think two thoughts on that, Your Honor. [00:16:19] Speaker 03: First, with respect to the telephone message slips and the case law in the BNA line of cases, [00:16:28] Speaker 03: That's only one aspect, right, that was considered to determine that those sorts of things are not agency records, because the relevant test is totality. [00:16:39] Speaker 04: Right, so I know that, right, but if you just focus on that one dimension, and I know you've got your argument that there's other, it's outweighed by other considerations, but on that one dimension, what's the comparison that helps you? [00:16:52] Speaker 03: I mean, I think, again, you just have to look, and we addressed this in our brief, at the substance [00:16:56] Speaker 03: of what the telephone slip would be conveying as compared to what an internet browsing history record would convey. [00:17:03] Speaker 03: It's not nearly a URL. [00:17:05] Speaker 03: I mean, the fact that the URL is something that you can then access yourself, a requester who comes into, who gets a copy of the browsing history record, they're able to actually view the substance of the content that an individual agency employee was viewing, presumably for work-related purposes, [00:17:25] Speaker 03: And that's very different than just a telephone number. [00:17:29] Speaker 03: Of course, you could try to call a telephone number, but you don't get, you may not be assured a cooperation from the person who picks up the phone to tell you what. [00:17:37] Speaker 04: Right, but don't you know the slip tells you who called, right? [00:17:43] Speaker 03: Usually, yeah. [00:17:44] Speaker 03: It may just tell you the phone number. [00:17:46] Speaker 03: I mean, it depends on [00:17:47] Speaker 03: That's going to be fact specific. [00:17:49] Speaker 03: It's going to depend on what the secretary or personal assistant was recording on the message slip. [00:17:54] Speaker 05: You probably don't ever remember getting those slips, but some of us do. [00:17:58] Speaker 05: And they said, John Smith called you from such and such a number, please return his call. [00:18:04] Speaker 05: I never saw one that didn't have similar information on it. [00:18:09] Speaker 05: And that's the way things used to be before there was such a thing as email and texting and computers and back in the [00:18:17] Speaker 05: Back in the last millennium. [00:18:20] Speaker 03: Sure. [00:18:21] Speaker 03: Could I ask you about the fourth element? [00:18:23] Speaker 05: Could I ask you about the fourth element? [00:18:25] Speaker 05: In what way is this integrated into the record system or files of the, and that or or of apparently is something you considered a misstatement. [00:18:36] Speaker 05: I've forgotten which is correct. [00:18:37] Speaker 05: But anyhow, in what way is it integrated? [00:18:40] Speaker 05: In the fourth factor, virtual analysis. [00:18:46] Speaker 03: I think, Your Honor, in the same way that something like an email record would be incorporated into agency files. [00:18:52] Speaker 05: Well, is this in the same database with anything else in the agency system of files or files? [00:19:01] Speaker 03: Is it in the same database? [00:19:03] Speaker 03: I mean, I want to just... That's the word integrated. [00:19:07] Speaker 05: It means something more than just being located in the same office. [00:19:11] Speaker 05: That fourth factor doesn't mean anything if we take [00:19:14] Speaker 05: your position that just being there is enough, is it? [00:19:20] Speaker 03: Well, it's being merely present in the physical space of the office is not going to be enough. [00:19:26] Speaker 03: But I think to use... Well, what is it here that you have... Whoa, whoa, whoa, whoa. [00:19:30] Speaker 05: What is it here that you have beyond that on the question of integration? [00:19:34] Speaker 03: Well, you have it on an agency computer. [00:19:38] Speaker 05: That's the same thing as being in the same office, isn't it? [00:19:42] Speaker 03: Well, no, I mean, I think we can draw a comparison to Gallant v NLRB, which, Judge Santel, I think you wrote that opinion. [00:19:50] Speaker 03: There may be what ended up being a personal record correspondence. [00:19:57] Speaker 03: The correspondence at issue, which ended up being determined a personal record, was a physical letter that was stored in a cubbyhole in a credenza in the office. [00:20:08] Speaker 03: And I think that's entirely disanalogous to [00:20:12] Speaker 03: records that are saved on agency software, on an agency computer, and are accessible by other agency staff. [00:20:24] Speaker 05: The accessibility of the other staff is very limited according to the JA, the record here. [00:20:33] Speaker 05: You had to be either sitting at the computer or at least be used signing on as the creator before you could have access, didn't you? [00:20:42] Speaker 05: You couldn't just go anywhere in the office and hit a database and get the integrated information. [00:20:48] Speaker 05: You had to go. [00:20:48] Speaker 03: So that's what the government has argued and that it's [00:20:57] Speaker 03: But that's no different, I think, than in most agencies with respect to the ability of IT staff, for example, to access the content of a computer. [00:21:06] Speaker 03: Not all agencies have a magic button that allows them to access something like Microsoft Outlook email records, which I think we would all acknowledge [00:21:15] Speaker 03: are well established as agency records. [00:21:18] Speaker 03: Some agencies, for example, the Internal Revenue Service, at least previously, had to physically copy the hard drive of a computer in order to search email in response to a FOIA request. [00:21:30] Speaker 03: Whether they've changed that practice, I'm not sure. [00:21:33] Speaker 03: But that would seem to, along your line of thinking, Your Honor, cut against integration. [00:21:41] Speaker 03: I'm not sure that that makes sense as an outcome. [00:21:45] Speaker 03: So long as something is on the agency computer and it's something that could be accessed by others, that integration aspect of the fourth Bertha factor is met. [00:21:58] Speaker 04: Thank you. [00:21:59] Speaker 02: Oh, Mr. Wang. [00:22:00] Speaker 04: Oh, please, Judge Rao. [00:22:01] Speaker 02: Sorry. [00:22:02] Speaker 02: I mean, under that reasoning, then, is anything on a person's computer integrated into the agency's records? [00:22:10] Speaker 02: just because it's on a computer and so therefore you can go find it somewhere? [00:22:16] Speaker 02: I mean, is that sort of the implication of your argument? [00:22:20] Speaker 02: Would there be anything on an agency employee's computer that would not be an agency record? [00:22:27] Speaker 03: Well, I think that if you had something on the local drive, say on your desktop, for example, that could be [00:22:37] Speaker 03: a distinguishing element, right? [00:22:38] Speaker 03: A distinguishing fact. [00:22:39] Speaker 02: How could that be a distinguishing fact where the agency owns your computer and its hard drive? [00:22:45] Speaker 02: So you don't put it on the network, but you have it on your C drive. [00:22:48] Speaker 02: I mean, that can't be the distinction. [00:22:51] Speaker 03: I mean, I think, again, it would be fact-specific. [00:22:56] Speaker 03: And moreover, even if that were enough with respect to integration, all the other aspects of the BRCA factors, or if we're in DNA totality of the circumstances, [00:23:07] Speaker 03: All of the other considerations about the creation, possession, control and use of this record that's located, you know, say it's a birthday card that you typed out and saved on your hard drive. [00:23:20] Speaker 03: All those other aspects are going to come into play. [00:23:24] Speaker 03: As well as the all important consideration that you purposely created that record for personal purposes. [00:23:32] Speaker 03: in a way that sort of aspect is absent from internet browsing history records. [00:23:36] Speaker 03: And moreover, looking at Kissinger, for example, and also CEI versus Office of Science and Technology Policy, the idea that you, the employee, have a superior claim of right over that record to call it your property, even though it's being used in a minimus way by expanding agency resources and stuff. [00:23:58] Speaker 03: That sort of consideration is completely absent from Internet browsing history records. [00:24:02] Speaker 03: An employee or an official can't claim his Internet browsing history records as his and walk out the door, as Secretary Kissinger did with his notes in Kissinger. [00:24:14] Speaker 02: So I think those sorts of considerations would... But then is the only reason the employee can't do that because the agency has a practice of capturing those browser histories? [00:24:28] Speaker 03: Well, that may be- I mean, that seems to be a big part of your argument. [00:24:35] Speaker 03: Yeah, and moreover, and this gets, I think, back to the first Berkut factor, which I was discussing with Judge Santel at the outset. [00:24:45] Speaker 03: That also speaks to intent to retain control. [00:24:47] Speaker 03: Here, we had the agencies doubling the retention period from the defaults. [00:24:52] Speaker 03: They obviously understood that there was some importance [00:24:56] Speaker 03: to Internet browsing history records to keep them within the agency, at least for some period of time. [00:25:03] Speaker 03: Otherwise, they wouldn't have done anything. [00:25:07] Speaker 03: They would have just kept the automatic retention settings, the ones that were set by the manufacturers. [00:25:11] Speaker 03: Instead, they took the proactive step of expanding more than doubling those retention periods. [00:25:19] Speaker 04: I want to make sure my colleagues don't have any further questions for you at this time. [00:25:24] Speaker 03: Thank you, Your Honor. [00:25:25] Speaker 03: We would ask that this circuit reverse the district court and hold that the records at issue are subject to agency control and disclosure under FOIA. [00:25:34] Speaker 04: Thank you. [00:25:34] Speaker 04: Mr. Mulvey, we'll give you a bit of time for rebuttal, but we'll hear from the government now. [00:25:38] Speaker 04: Mr. Fan. [00:25:40] Speaker 01: Good morning, Your Honors. [00:25:41] Speaker 01: May it please the court, Dennis Fan, on behalf of the United States. [00:25:44] Speaker 01: I just wanted to pick up on one discussion that they had about the yellow telephone slips that were the subject of [00:25:52] Speaker 01: Bureau of National Affairs. [00:25:53] Speaker 01: This case really is even easier than Bureau of National Affairs along three metrics. [00:26:00] Speaker 01: And I kind of want to point these out in turn. [00:26:02] Speaker 01: They have to do with what my colleague noted are the sort of creation, possession, and use of a record that this court has often found significant. [00:26:12] Speaker 01: As you know, Bureau of National Affairs, the documents there were created solely as a personal convenience. [00:26:19] Speaker 01: They were kept [00:26:20] Speaker 01: sometimes, but often thrown away, and they weren't really used in the course of any agency decision making. [00:26:28] Speaker 01: Here, the internet browsing histories are created solely as a technological byproduct of using the internet. [00:26:37] Speaker 01: If you're using the internet at home on your web browser, you're going to create a web browsing history. [00:26:41] Speaker 01: If you use it at work, you create a web browsing history. [00:26:44] Speaker 01: In the same way, they're routinely deleted. [00:26:46] Speaker 01: And in fact, there are deletion periods in which they have to be deleted after a certain amount of time with respect to browsing histories. [00:26:55] Speaker 01: And finally, [00:26:56] Speaker 01: In terms of use, browsing histories are far less useful than the telephone slips were. [00:27:02] Speaker 01: I mean, you could go your entire career within a government agency without opening up your browsing history. [00:27:11] Speaker 01: Back in the day, if you didn't have telephone slips, I mean, you couldn't really run an agency without them because you wouldn't know who [00:27:19] Speaker 01: So who called, when they had called, how to get them called back. [00:27:24] Speaker 01: And you would be sitting at your phone all day, essentially, waiting for the next call to come in. [00:27:29] Speaker 01: So along each of those metrics, this case really is easier creation, retention, and use. [00:27:35] Speaker 01: This case is far easier than Bureau of National Affairs. [00:27:38] Speaker 01: And I think that case and that binding circuit precedent easily covers the situation that we have here. [00:27:46] Speaker 04: So I have a question. [00:27:50] Speaker 04: You start out your brief by saying because officials in a technical sense caused the creation of browsing history simply by using the browsers and then go on to the second aspect of the tax analysts framework. [00:28:02] Speaker 04: And I'm just wondering why it's self-evident under the first prong of the tax analysts framework for a couple of reasons. [00:28:10] Speaker 04: I mean, you might well say, look, we had an easier argument under the second prong and that's why we focus on that. [00:28:13] Speaker 04: I understand that as a matter of argumentation, but in terms of what the conceptual reality of what we're dealing with for purposes of our analysis, [00:28:21] Speaker 04: Is it right that browsing history, a couple of questions first, is a browsing history a record that always exists as opposed to one that's created upon request? [00:28:34] Speaker 04: In which event that's the creation of a record rather than the existence of a record. [00:28:38] Speaker 04: And FOIA doesn't cover creation of new records, it covers existence of pre-existing records. [00:28:44] Speaker 04: And the second somewhat related question is, [00:28:47] Speaker 04: Is the browsing history something that exists? [00:28:50] Speaker 04: I know you can find it on a computer, on a government computer, but does the browsing history exist in the government or is it something that the browser company has and then the particular user can then just commission when they want to. [00:29:03] Speaker 04: So it's like an offsite, something that's kept somewhere else, but can be brought into the government's purview upon request. [00:29:12] Speaker 01: I think the best way to think about this, if you remember that there are the best analogy for this. [00:29:18] Speaker 01: If you think back in the day of before there were computers and you went to a library and you had to get one of those index cards with a short stubby pencils and write down reference call numbers and you like went through the catalogs. [00:29:30] Speaker 01: You're like, what's this book? [00:29:31] Speaker 01: What's that other book? [00:29:32] Speaker 01: And you kind of scroll down a few numbers. [00:29:35] Speaker 01: That's the best way to think about this. [00:29:37] Speaker 01: I mean, this is kind of you having some type of [00:29:41] Speaker 01: notation that says, hey, I went to Google yesterday. [00:29:46] Speaker 01: And you write down Google as the URL. [00:29:49] Speaker 01: So they are on government. [00:29:53] Speaker 04: This is metaphysical. [00:29:54] Speaker 04: And I'm not sure that it's going to ultimately matter to this position of the case. [00:29:59] Speaker 04: But even on that analogy, you're the one who's writing down the things that you're going to ask to be found in the stacks. [00:30:07] Speaker 04: But it would be different if you just said to a librarian, [00:30:11] Speaker 04: here's the five books I want. [00:30:13] Speaker 04: And then you ask the librarian, oh, what are the five books I want? [00:30:16] Speaker 04: I wanted. [00:30:17] Speaker 04: And then the librarian, he says, oh, I wrote them down. [00:30:20] Speaker 04: Here's what I wrote down. [00:30:23] Speaker 04: Those are two different things. [00:30:26] Speaker 01: That is entirely right. [00:30:27] Speaker 01: I mean, the browser histories do exist. [00:30:31] Speaker 01: I guess maybe taking your questions more directly, the browser histories do exist on government devices and on government computers. [00:30:38] Speaker 01: That's sort of the way they function. [00:30:41] Speaker 01: exists off-site in some ether in the cloud? [00:30:44] Speaker 05: Not on the cloud somewhere. [00:30:46] Speaker 01: Which I don't know how to treat that, but you know. [00:30:49] Speaker 01: And the second answer is [00:30:51] Speaker 01: in terms of how they're created, you're right. [00:30:54] Speaker 01: I mean, that your computers create these and they create these to make themselves more functional. [00:31:00] Speaker 01: So that when you type in GO into the search bar, it says, you know, wow, Judge Srinivasan goes to Google a lot. [00:31:07] Speaker 01: So we'll autofill, you know, Google into the search bar. [00:31:11] Speaker 01: You could, I mean, not on many government devices, because most government devices [00:31:16] Speaker 01: your ability to change settings is highly constrained. [00:31:20] Speaker 01: But on a lot of devices, you could turn off your browsing history. [00:31:24] Speaker 01: You could have no browsing history. [00:31:25] Speaker 01: You could function perfectly well even without one. [00:31:31] Speaker 01: So in that sense, there's some very small element of choice. [00:31:36] Speaker 01: And we didn't argue below that these weren't [00:31:40] Speaker 01: created or obtained in a technical sense. [00:31:43] Speaker 01: And we didn't press that argument, which is why we haven't done so here, but I certainly understand the distinction where you have documents that somehow sort of just [00:31:53] Speaker 01: as you might think of them appear onto your computer. [00:31:56] Speaker 01: I mean, computers kind of run all sorts of things on the background that might create files or create different versions of things that you don't even know about and you have no choice about. [00:32:05] Speaker 01: But I think that only underscores why the agencies aren't really exercising any degree of control here in the relevant sense. [00:32:14] Speaker 02: Mr. Fan, I was interested in this argument about whether the district court should have dismissed for lack of subject matter jurisdiction here. [00:32:25] Speaker 02: And in going through the cases, I mean, there seems to be some tension in how we talk about this, you know, establishing that these are agency records as part of the jurisdictional inquiry. [00:32:37] Speaker 02: or not, because there are cases that suggest it goes to jurisdiction. [00:32:42] Speaker 02: But then, of course, we have that footnote in taxed analysts, which say, well, the government has the burden of showing that it is not an agency record. [00:32:51] Speaker 02: So I'm wondering, how should we think about that issue? [00:32:55] Speaker 02: How should we reconcile those tensions? [00:32:59] Speaker 01: Yeah, I'm not sure when exactly this sort of becomes jurisdictional or not. [00:33:04] Speaker 01: I mean, if you [00:33:07] Speaker 01: asked an agency for all the documents in the possession of some private company. [00:33:12] Speaker 01: I mean, I'm sure we would say, like, that's not a FOIA request at all. [00:33:16] Speaker 01: Like, what you've provided doesn't sound like a FOIA request. [00:33:19] Speaker 01: That sounds like you want the agency to go subpoena some private company. [00:33:24] Speaker 01: But I don't think it matters here. [00:33:26] Speaker 01: And I don't think the court needs to decide because ultimately, if it's not an agency record, there's both no [00:33:33] Speaker 01: cause of action or claim under FOIA and there's no jurisdiction. [00:33:37] Speaker 01: So I think those issues sort of collapse because FOIA at least only provides jurisdiction for FOIA claims. [00:33:42] Speaker 02: Maybe it collapses in this case, but conceptually it could certainly make a difference over the run of cases. [00:33:48] Speaker 02: And if it is a jurisdictional inquiry, then it would be the case that the plaintiff has to demonstrate that it's an agency record, right? [00:33:56] Speaker 02: Because the plaintiff has the obligation of demonstrating jurisdiction. [00:34:01] Speaker 01: Generally, I think that's right. [00:34:04] Speaker 01: And again, I think the only cases it does matter are the sort of [00:34:08] Speaker 01: you know, the cases that I can think of as absurd cases, right? [00:34:12] Speaker 01: Where you say, like, I want the documents of the State Department of Education, and you file a FOIA request with the US Department of Education. [00:34:22] Speaker 01: We might say that, well, that's not a FOIA request at all, because you haven't even asked an agency for something that would be an agency record. [00:34:28] Speaker 01: And if they attempted to sue on the basis of that, we might say, well, there's no FOIA request that could be the basis of jurisdiction. [00:34:37] Speaker 01: And in any event, like I said, I think this case, at least, is fact specific enough where it needs to be resolved as a factual matter on declarations. [00:34:47] Speaker 01: And that's what the district court did. [00:34:49] Speaker 01: So I think, at least in this case, as your honor mentioned, it's not distinguishable. [00:34:54] Speaker 04: I'm sorry, Judge Rao. [00:34:55] Speaker 04: No, no, go ahead. [00:34:57] Speaker 04: I'm on the same wavelength. [00:35:01] Speaker 04: Whether it's jurisdictional or not would go to whether we have to notice it on our own, wouldn't it? [00:35:06] Speaker 04: So for example, if you had a case in which the government, for whatever reason, didn't make an argument that the requested matter didn't qualify as an agency record, but then just went right straight to the exemptions and said, don't worry about it because it fits squarely within an exemption, then if it goes to jurisdiction, then we on appeal would have to actually address whether it's an agency record or not. [00:35:26] Speaker 04: We couldn't just go to the exemption question. [00:35:28] Speaker 01: Right, that is entirely correct. [00:35:30] Speaker 01: You wouldn't be able to go directly to the exemption question though, presumably you [00:35:35] Speaker 01: could also say that there's no cause of action for something that [00:35:41] Speaker 04: But distance or non-existence of a cause of action is usually a merits question, not a jurisdictional question, isn't it? [00:35:46] Speaker 01: No, that's entirely right. [00:35:49] Speaker 01: And I guess I'm just assuming that the government in most of those cases would make some type of argument there, that there is no cause of action and thus that totally collapses with whatever jurisdictional inquiry that might arise in these circumstances. [00:36:02] Speaker 01: And like I said, I don't think that this case is the one to resolve that sort of question. [00:36:06] Speaker 01: I don't think there's really [00:36:07] Speaker 01: many cases that that question would have had any significance. [00:36:11] Speaker 02: I guess I think I disagree that that whether it is a jurisdictional inquiry is only important in the outlandish cases, because if something is jurisdictional, it's important in every case. [00:36:26] Speaker 02: Right. [00:36:26] Speaker 02: So so this this argument that you're making that, you know, well, of course, it would only matter in the outlandish case. [00:36:33] Speaker 02: I don't I don't I guess I don't understand that argument. [00:36:38] Speaker 02: I understand you may not want us to reach that question in this case, but I guess I don't understand like the government's position to say, you know, jurisdiction only matters in outlandish cases. [00:36:52] Speaker 01: Yeah. [00:36:52] Speaker 01: And I think some of this has to do with functionally how a FOIA request is processed. [00:36:59] Speaker 01: I mean, you're going to look at the sort of face of a FOIA request and if it [00:37:04] Speaker 01: doesn't even sound like it's a real FOIA request for some real things that are agency records, then the agency is well within its rights to say, look, this isn't anything we can do anything about. [00:37:19] Speaker 01: This isn't a request that we can provide records or even do a search on. [00:37:22] Speaker 01: And if they sue, then we would [00:37:27] Speaker 01: then saying perhaps that there's no jurisdiction over that suit because there's no FOIA request for something that on its face looks like an agency record. [00:37:37] Speaker 01: But in this case, I think, you know, understanding what the browsing histories are depends necessarily on the sort of declarations about what the browsers do and how they function. [00:37:50] Speaker 01: And in that sense, it [00:37:53] Speaker 01: it collapses in cases like these, where there's no cause of action because there's no agency record for sure. [00:38:07] Speaker 04: So are there cases in which the proper disposition is 12b1 rather than 12b6? [00:38:15] Speaker 01: Yeah, there's been suggestions that for there to be jurisdiction, it needs to be a record by the agency in sort of that numerical sense. [00:38:26] Speaker 01: I'm not sure whether those cases really mean jurisdiction in the strict sense. [00:38:35] Speaker 05: There are cases where the question has arisen as to whether something is an agency or not. [00:38:39] Speaker 05: The reference presidential offices that things that are not agencies would not be within that would be jurisdiction, would it not. [00:38:46] Speaker 01: That's, that's absolutely right. [00:38:48] Speaker 01: Your honor, if you'd like it, like I mentioned, if you, you know, sent a FOIA request to the State Department of Education under the federal Freedom of Information Act. [00:38:58] Speaker 01: And they said, well, we're not really an agency. [00:39:01] Speaker 01: That would certainly be jurisdictional. [00:39:03] Speaker 05: And that's what I mean when I say White House counsel's office, uh, presidential offices that are not agencies. [00:39:10] Speaker 05: So that would not be, that would be jurisdictional, uh, an attempt to get judicial or congressional records. [00:39:17] Speaker 05: Likewise, we're not agencies. [00:39:20] Speaker 05: So that would be jurisdictional, would it not? [00:39:22] Speaker 01: That could be jurisdictional, Your Honor, and it could be, I mean, it depends on where those records are housed in some circumstances, but it could also be jurisdictional, for example, if there was an agency that just isn't subject to FOIA at all, in which Congress had otherwise exempted them altogether from FOIA and you sent them a FOIA request for agency records, they could say, well, [00:39:46] Speaker 01: We're not one of the relevant agencies with respect to FOIA. [00:39:50] Speaker 01: And so there are maybe, you know, maybe I've overstated it a bit. [00:39:54] Speaker 01: I mean, there could be cases where the jurisdictional inquiry matters to some degree. [00:39:58] Speaker 01: But in this case, the real question is, are these agency records and [00:40:02] Speaker 01: Well, they simply aren't. [00:40:04] Speaker 02: And so both argument because if it is just you admit that it's jurisdictional, whether something is an agency or not, and there are government entities that are not agencies within the meaning of FOIA, then shouldn't it also be jurisdictional whether something is a record, right, because that term goes together agency record, it's not. [00:40:23] Speaker 02: So if the agency component of it is jurisdictional, why wouldn't the record component of it also be jurisdictional? [00:40:31] Speaker 01: I mean, we'd be happy if this court affirmed on the basis that there was no jurisdiction in district court. [00:40:41] Speaker 01: You know, the question of whether something is an agency tends to be a little bit [00:40:44] Speaker 01: more clean cut than some of the questions of whether something is a record. [00:40:49] Speaker 01: We think the question of whether there's a record in this case in particular happens to be fairly straightforward and decided based on Bureau of National Affairs. [00:41:00] Speaker 01: But I see my time has elapsed and unless there are further questions, we urge you differ. [00:41:09] Speaker 04: Thank you, Mr. Fan. [00:41:09] Speaker 04: Unless my colleagues have further questions for you, we'll have for Mr. Mulvey for his rebuttal. [00:41:15] Speaker 04: Mr. Mulvey, we'll give you two minutes for rebuttal. [00:41:23] Speaker 05: And we've lost him again. [00:41:25] Speaker 03: No, I'm back. [00:41:26] Speaker 03: I just need to unmute myself, Your Honor. [00:41:29] Speaker 03: Thank you. [00:41:30] Speaker 03: I would like to add one point on the question of jurisdiction. [00:41:35] Speaker 03: Judge Rao, you had mentioned that [00:41:38] Speaker 03: at least to subject matter jurisdiction, the question of whether a record is an agency record, if that's jurisdictional, or rather, if the question of whether a government entity is an agency may be just as jurisdictional as the question of an agency record. [00:41:55] Speaker 03: If you look at Kissinger, which is where this three-part aspect of jurisdiction is kind of spelled out, you would have to add to that list the question of whether [00:42:08] Speaker 03: a record has been unlawfully withheld, whether or not an exemption has been properly applied, that would need to be jurisdictional as well. [00:42:18] Speaker 03: And if that were the case, it would throw a whole of FOIA into an entire mess because [00:42:27] Speaker 03: It would destroy, like you mentioned the footnote in tax analysts that an agency bears the burden of demonstrating that it has lawfully withheld the records. [00:42:39] Speaker 03: All of that would be thrown into disarray if we were dealing with 12B1 because the burden would be on a plaintiff requester to demonstrate at the outset that not only is the entity in receipt of a FOIA request [00:42:56] Speaker 03: an agency for purposes of FOIA and that it has control over the records, but that a particular statutory exemption has or has not been properly applied. [00:43:07] Speaker 03: And I don't think that makes much sense. [00:43:10] Speaker 03: I think a lot of the confusion that has arisen, and I'm not quite sure why the government in this case decided to move to dismiss under 12B1 because [00:43:21] Speaker 03: There is not one single example in this circuit that I can think of of a case dealing with the question of whether an entity is subject to the FOIA or whether records are agency records that's been decided in terms of subject matter jurisdiction. [00:43:39] Speaker 03: It's always a merits question. [00:43:42] Speaker 03: A lot of it stems from just ambiguity in the language of the FOIA itself. [00:43:48] Speaker 03: It uses the term jurisdiction, but as the district court here, [00:43:51] Speaker 03: And as the district court in cause of action versus Internal Revenue Service, which is an opinion I would recommend to the panel here to review for this question of jurisdiction, it's used ambiguously and appellate position and the decision of the court below. [00:44:09] Speaker 03: was that jurisdiction here really doesn't mean the power of the court to hear a well-pleaded FOIA claim, but rather jurisdiction here speaks to the limits of the court's remedial power to provide a certain type of relief. [00:44:26] Speaker 03: So if a record isn't an agency record, or if an entity isn't an agency, the court can't order disclosure of anything. [00:44:35] Speaker 04: Turning to- Thank you, Mr. Mulvey. [00:44:37] Speaker 04: Thank you. [00:44:39] Speaker 04: Colleagues don't have further questions for you. [00:44:42] Speaker 04: I think we've gone quite far enough. [00:44:44] Speaker 04: OK, thank you. [00:44:46] Speaker 04: Thank you, Mr. Fan. [00:44:48] Speaker 04: We'll take this case under submission.