UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER,

Plaintiff,

v. Case No. 1:19-cv-02906 (TNM) NATIONAL SECURITY COMMISSION ON ARTIFICIAL INTELLIGENCE, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Congress recently created the National Security Commission on Artificial Intelligence.

The Electronic Privacy Information Center (“EPIC”) wants to shed light on the Commission’s

work. EPIC requested records from the Commission and the Department of Defense under the

Freedom of Information Act (“FOIA”),

. Neither entity was forthcoming with

records, so EPIC sued. The Government moves to dismiss some of EPIC’s claims. Its primary

contention is that the Commission is not an “agency” subject to FOIA. The Court finds

otherwise. For this and other reasons, the Court denies the Government’s motion.

I.

Congress gave the Commission its marching orders in the John S. McCain National

Defense Authorization Act for Fiscal Year 2019 (“NDAA”). See

,

, 1962–65 (2018). Its mandate is “to review advances in artificial intelligence,

related machine learning developments, and associated technologies.”

§ 1051(a)(1). In

carrying out that review, the Commission must consider many factors, including the country’s

national security needs. See id. § 1051(b)(1)–(2). This review is not academic. The NDAA requires the Commission to submit three reports to the President and Congress. Id. § 1051(c).

These reports are to contain the Commission’s findings and any recommendations it has “for

action by the executive branch and Congress related to artificial intelligence . . . including

recommendations to more effectively organize the Federal Government.” Id. § 1051(c)(1). The

reports “shall be made publicly available, but may include a classified annex.” Id. § 1051(c)(3).

The Commission was to submit an initial report within 180 days of its creation, id.

§ 1051(c)(1), and an interim report was due in August 2019. Id. § 1051(c)(2). Both reports

came late. Compl. ¶¶ 75, 79, ECF No. 1. The Commission will end in October 2020.

(e). 1 Before then, the Commission must submit one final report to the

President and Congress. See

§ 1051(c)(2).

The Commission consists of 15 members. Id. § 1051(a)(4)(A). Most are congressional

appointees. The Secretary of Defense appoints two members and the Secretary of Commerce

appoints one. Id. § 1051(a)(4)(A)(i)–(ii). But the chairman or ranking member of six

congressional committees appoint the others. Id. § 1051(a)(4)(A)(iii)–(xiv).

EPIC describes itself as “one of the leading organizations in the country with respect to

the privacy and human rights implications of AI use.” Compl. ¶ 10. So it comes as little surprise

that EPIC has closely tracked the Commission. Or at least it tries to do so. EPIC alleges that the

Commission “has operated almost entirely in secret.” Id. ¶ 59. When EPIC filed its Complaint,

the Commission had held at least 13 meetings and had received “more than 100 briefings.” Id.

¶ 38. But the Commission had conducted these proceedings “behind closed doors” and had

“failed to publish or disclose any notices, agendas, minutes, or materials for those meetings.” Id.

1 The NDAA for Fiscal Year 2020, not yet enacted, would extend the life of the Commission through March 2021. See S. 1790, 116th Cong. § 1083 (2019).

2 ¶ 59. Meanwhile, the Commission is now working to prepare its final recommendations. See

Compl. Ex. H. These recommendations, EPIC claims, “could have far-reaching implications for

the U.S. government, private companies, and the public at large.” Compl. ¶ 5.

EPIC has tried to shine light on the Commission. In February, EPIC asked DOD for

records related to the Commission’s work, invoking both FOIA and the Federal Advisory

Committee Act (“FACA”), 5 U.S.C. app. 2. Compl. Ex. B at 1, 6. 2 EPIC requested expedited

processing under FOIA. Id. at 4–5; see

(a)(6)(E). EPIC gave two reasons why its

request was urgent. Compl. Ex. B at 4. First, the release of the Commission’s initial report was

imminent.

Second, the Commission was “operating at a time when the White House has

launched the ‘American AI Initiative.’”

So the Commission’s “findings, recommendations,

and proceedings” would “have significant influence on AI policymaking by both Congress and

the executive branch.”

DOD acknowledged EPIC’s FOIA request six days later. Compl. Ex. C. Though it had

“begun processing” the request, it was unable to respond within FOIA’s 20-day period because

of “unusual circumstances.”

It also denied EPIC’s request for expedited processing because

EPIC had “not clearly demonstrated how the information will lose its value if not processed on

an expedited basis.”

EPIC filed an administrative appeal of DOD’s denial of expedited

processing. Compl. Ex. E. DOD had not acted on this appeal when EPIC sued here. See

Compl. ¶¶ 109–10.

In September, EPIC submitted requests under FOIA and FACA to the Commission itself.

Compl. Ex. I at 1, 11. It again requested expedited processing under FOIA.

at 8–9. EPIC

2 The Complaint does not explain why EPIC thought it could get the Commission’s records through DOD. The Commission is not part of DOD, though Congress funded the Commission with $10,000,000 that it had appropriated to DOD. See

(a)(2), (d).

3 said it was urgent to inform the public about the Commission’s activities before it released its

interim report.

EPIC also reiterated that the Commission’s findings and recommendations

would “have significant influence on the White House’s [AI] initiative and on AI policy

generally.”

. The Commission acknowledged receipt of EPIC’s requests but has not

otherwise responded to them. Compl. ¶¶ 81, 84, 94–97.

Sixteen days after it submitted its requests to the Commission, EPIC filed this action.

. The Complaint raises three claims under FOIA, two claims under FACA, and three claims

under the Administrative Procedure Act. See

¶¶ 112–63. EPIC simultaneously moved for a

preliminary injunction. Mot. for Prelim. Inj. at 1, 3 ECF No. 4. It claimed it would suffer

irreparable harm if the Court did not immediately order the Commission and DOD to process its

FOIA requests in an expedited fashion. See Mem. in Supp. of Mot. for Prelim. Inj. at 9–10, ECF

No. 4-1. After holding a hearing, the Court denied the motion because EPIC had failed to show

irreparable harm. See Tr. of Prelim. Inj. Hr’g at 46–47, ECF No. 22.

The hearing revealed that the Commission is more likely than DOD to have the records

that EPIC wants. See

. The Commission has no other pending FOIA requests or even a

FOIA apparatus.

. Indeed, the Government claimed that the Commission is not

subject to FOIA.

. The Court thus ordered expedited briefing on this threshold question.

See

at 57–58.

That issue is now ripe. The Government argues that the Court should dismiss EPIC’s

FOIA claims against the Commission because it is not an “agency” subject to FOIA. See Mot. to

Dismiss FOIA Claims at 1 (“Partial Mot. to Dismiss”), ECF No. 23. The Government also

contends that even if the Commission is subject to FOIA, the Court should still dismiss two

3 All page citations are to the page numbers generated by the Court’s CM/ECF system.

4 FOIA counts in the Complaint—Counts VI and VII. See Mem. in Supp. of Mot. to Dismiss

FOIA Claims (“Gov’t Mem.”) at 12–13, ECF No. 23-1. Count VI asserts a claim under FOIA

based on the failure of the Commission and DOD to comply with the statute’s deadlines. Compl.

¶¶ 147–52. Count VII alleges that the Commission and DOD unlawfully denied expedited

processing of EPIC’s FOIA requests.

¶¶ 154–58.

II.

The Government’s motion to dismiss invokes Federal Rule of Civil Procedure 12(b)(6).

Partial Mot. to Dismiss at 1. To survive this motion, a complaint must contain sufficient factual

allegations that, if true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly,

(2007). The Court must “treat the complaint’s factual allegations as

true and must grant the plaintiffs the benefit of all inferences that can be derived from the facts

alleged.” L. Xia v. Tillerson,

(D.C. Cir. 2017) (cleaned up). But courts need

not accept the truth of legal conclusions or “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements.” Ashcroft v. Iqbal,

(2009).

III.

A.

“By its terms, FOIA applies only to an ‘agency.’” CREW v. Office of Admin.,

(D.C. Cir. 2009); see

(a) (“Each agency shall make available to the

public information as follows[.]”). The Court concludes that the Commission is indeed an

“agency” subject to FOIA. Consider first the definition of “agency.” The general definition is

“each authority of the Government of the United States.”

(1). FOIA specifies that

“‘agency’ as defined in section 551(1) of [title 5] includes any executive department, military

department, Government corporation, Government controlled corporation, or other

5 establishment in the executive branch of the Government (including the Executive Office of the

President), or any independent regulatory agency.”

§ 552(f)(1) (emphasis added).

Now consider the NDAA, the Commission’s organic statute. It decrees: “There is

established in the executive branch an independent Commission to review advances in artificial

intelligence[.]”

(a)(1) (emphasis added). That Commission “shall

be considered an independent establishment of the Federal Government as defined by section

104 of title 5.”

§ 1051(a)(2) (emphasis added). Section 104 of title 5, meanwhile, explains

that “[f]or purposes of this title, ‘independent establishment’ means . . . an establishment in the

executive branch . . . which is not an Executive department, military department, Government

corporation, or part thereof, or part of an independent establishment.”

(1)

(emphasis added). Congress could have hardly been clearer. Having said that FOIA applies to

“any . . . establishment in the executive branch,”

§ 552(f)(1) (emphasis added), it chose to call

the Commission an “establishment in the executive branch.”

This has happened before. Thirty years ago, Congress created the Defense Nuclear

Facilities Safety Board. See Energy Research Found. v. Def. Nuclear Facilities Safety Bd.,

(D.C. Cir. 1990). The Board’s organic statute declared: “There is hereby

established an independent establishment in the executive branch.”

(a). The

Board claimed it was not subject to FOIA, but the D.C. Circuit disagreed. See Energy Research,

. The court observed that § 2286(a) “used the same terms contained in § 552(f)’s

description of ‘agency.’” Id. at 582. “It would be a tall piece of statutory construction,” the

court continued, “to say that an ‘establishment in the executive branch’ as used in § 2286(a) is

not an ‘establishment in the executive branch’ within the meaning of § 552(f).” Id. at 582–83.

So too here.

6 There is more. Energy Research went beyond just the textual comparison. It looked at

the whole of the Board’s statute and found “nothing to indicate that Congress intended to excuse

the Board from complying with FOIA.” Id. at 583. The same is true here. See Pub. L. No. 115-

232, § 1051. Indeed, there is powerful circumstantial evidence that Congress intended to impose

FOIA on the Commission. In a different section of the NDAA, Congress created the Cyberspace

Solarium Commission. Id. § 1652. But it did not establish this commission “in the executive

branch” or use a cross-reference to

. Congress said simply “[t]here is established

a commission . . . known as the ‘Cyberspace Solarium Commission.’”

§ 1652(a)(1)–(2). A

later subsection then declared that FOIA “shall not apply to the activities, records, and

proceedings of the [Cyberspace Solarium] Commission.” Id. § 1652(m)(2). So the Congress

that created the AI Commission knew how to excuse it from FOIA, but did not do so.

The Government has no direct response to these textual arguments. See Reply in Supp.

of Mot. to Dismiss FOIA Claims (“Gov’t Reply”) at 7–9, ECF No. 25. Instead, like a stranger

offering candy to a child, the Government invites the Court not to read

(f)(1)

literally. See infra Section III.B. EPIC, meanwhile, points to several other “establishment[s] in

the executive branch” that do comply with FOIA. Consider the language Congress used to create

these entities, all of which have websites devoted to FOIA requests. See Opp’n to Defs.’ Partial

Mot. to Dismiss (“EPIC’s Opp’n”) at 21–22 & nn.5–6, 8–15, ECF No. 24. 4

• “The Armed Forces Retirement Home is an independent establishment in the

executive branch.”

(a).

4 The Court has added emphasis for the pertinent language in each of these bullet points.

7 • “There is established, as an independent establishment of the executive branch of the

United States Government, the Barry Goldwater Scholarship and Excellence in

Education Foundation.”

(a).

• “There is established, as an independent establishment of the executive branch of the

United States Government, the Harry S. Truman Scholarship Foundation.”

(a).

• “[T]here is established, as an independent establishment of the executive branch, the

James Madison Memorial Fellowship Foundation.”

(a).

• “There shall be an independent establishment in the executive branch of the

Government to be known as the National Archives and Records Administration.”

.

• “There is established a Nuclear Waste Technical Review Board that shall be an

independent establishment within the executive branch.”

.

• “The Office of Personnel Management is an independent establishment in the

executive branch.”

.

• “The Postal Regulatory Commission is an independent establishment of the executive

branch of the Government of the United States.”

.

• “There is established in the executive branch an independent establishment to be

known as the United States Interagency Council on Homelessness.”

.

• “There is established, as an independent establishment of the executive branch of the

Government of the United States, the United States Postal Service.”

.

8 Of course, an entity is not subject to FOIA simply because it has a FOIA website.

Perhaps these ten bureaucracies welcomed the opportunity to open their internal deliberations to

public inspection. But this list suggests that excusing the Commission from FOIA would be

anomalous, to say the least.

B.

The Government urges that

(f)(1) does not mean what it says. By its

terms, § 552(f)(1) declares that “any . . . establishment in the executive branch” is subject to

FOIA. But the Government says not so. See Gov’t Mem. at 15. The Government contends that

the caselaw requires a non-literal reading. See id. at 15–18. Its argument starts with Soucie v.

David,

(D.C. Cir. 1971). See Gov’t Mem. at 14–15.

The question in Soucie was whether the Office of Science and Technology, a body in the

Executive Office of the President, was subject to FOIA.

n.2, 1071. At the

time, the only relevant definition of “agency” was the one in § 551(1)—an “authority of the

Government of the United States.” See id. at 1073. Congress had not yet enacted § 552(f)(1).

Soucie reasoned that the definition in § 551(1) “confers agency status on any administrative unit

with substantial independent authority.” Id. Since the Office of Science and Technology did not

just “advise and assist the President,” but also had an “independent function of evaluating federal

programs,” it was an “agency” under § 551(1), and thus subject to FOIA. See id. at 1075.

The relevance here of Soucie’s functional analysis is not immediately apparent. The

decision came before the enactment of § 552(f)(1). It thus dealt with the general phrase

“authority of the Government,” not the more specific phrase “establishment in the executive

branch.” But, the Government says, the Court should consider the legislative history of the 1974

amendment that enacted § 552(f)(1). See Gov’t Mem. at 15. Recall the text of that provision:

9 “‘agency’ as defined in section 551(1) of this title includes any . . . establishment in the executive

branch of the Government (including the Executive Office of the President).”

(f)(1) (emphasis added). The conference report for the 1974 amendment contains the

following language:

With respect to the meaning of the term “Executive Office of the President” the conferees intend the result reached in Soucie v. David,

(C.A.D.C. 1971). The term is not to be interpreted as including the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.

H.R. Conf. Rep. No. 93-1380, at 15 (1974) (emphasis added).

So the conferees intended to exempt some entities in the White House from FOIA,

despite what § 552(f)(1) says. Back in the bacchanalian days of judicial idolization of legislative

history, the Supreme Court relied on this report to hold that the telephone notes of an Assistant to

the President were not “agency records” under FOIA. See Kissinger v. Reporters Comm. for

Freedom of the Press,

, 155–56 (1980). The D.C. Circuit joined in, holding that

certain entities in the White House are not subject to FOIA. See, e.g., Rushforth v. Council of

Econ. Advisers,

(D.C. Cir. 1985). Cases like Rushforth apply

Soucie’s functional analysis, asking whether the entity in the White House has the “sole

function” of advising and assisting the President. See

. If the answer is yes, it is

exempt from FOIA. See

. Formulated another way, the question is whether an entity

in the White House “wield[s] substantial authority independently of the President.” CREW,

(quoting Sweetland v. Walters,

(D.C. Cir. 1995)). Under this

formulation, if the answer is no, the entity is exempt from FOIA. See id. at 223.

This is all straightforward enough. Whatever misgivings the Court may have about using

legislative history, the Court is bound by the higher courts’ repeated reliance on the conference

report the Government identifies. The D.C. Circuit has cited that report to hold that not all

10 entities in the White House are subject to FOIA, despite the plain terms of § 552(f)(1). So this

would be a much different case if the Commission were in the White House. But it is not. See

Gov’t Mem. at 16–19.

The Government instead derives a much broader principle from the conference report and

the Soucie line of cases. According to the Government, whenever it would raise separation of

powers concerns to say that an entity is subject to FOIA, the text of § 552(f)(1) must give way.

See id. at 15–18. The canon of constitutional avoidance would kick in, and a court would have

to apply Soucie’s functional test to determine whether the entity must comply with FOIA. See

id. Here, the Government says, it would raise separation of powers concerns to say that the

Commission is an “establishment in the executive branch” subject to FOIA. See id. at 18–19.

The Government reasons that under Soucie’s functional test, the Commission does not exercise

“substantial independent authority” and is thus exempt from FOIA. See id. at 20. This argument

fails for many reasons.

First, the Government misunderstands the canon of constitutional avoidance. It is not a

license to ignore unambiguous text. As the Supreme Court has recently reminded us,

“constitutional avoidance comes into play only when, after the application of ordinary textual

analysis, the statute is found to be susceptible of more than one construction.” Nielsen v. Preap,

(2019) (cleaned up). “The canon has no application absent ambiguity.”

(cleaned up). Ambiguity is absent here, see supra Section III.A, so the canon does not apply.

Second, Energy Research strongly supports EPIC’s position. That decision came in

1990. By then, the D.C. Circuit had decided several cases that applied Soucie’s functional test.

See, e.g., Rushforth, 762 F.2d at 1040–41. Yet the textual analysis in Energy Research—

identical to the textual analysis here—was dispositive. See 917 F.2d at 582–83. The

11 Government insists there was no need for constitutional avoidance in Energy Research because

that case “did not raise any separation of powers issues.” See Gov’t Reply at 7. Perhaps, but that

is irrelevant. The statutory text here, like the text at issue in Energy Research, is unambiguous.

So constitutional avoidance does not apply here either. See Nielsen,

.

To be sure, Energy Research did go on to apply Soucie, but only to note that the same

result would obtain under a functional approach. See 917 F.2d at 584–85. The court was

reluctant to apply Soucie at all. It noted that doing so would conflict with Crooker v. Office of

the Pardon Attorney,

(2d Cir. 1980). See

. Crooker concluded that

the language in the conference report for the 1974 amendment “applies as a limitation upon

FOIA coverage only within the Executive Office of the President.”

(emphasis

added). It expressly rejected the Government’s “attempt[] to apply this limitation throughout the

executive branch.”

Crooker and Energy Research dealt with entities not in the White House.

See

at 827–28;

. So too here. The text of § 552(f)(1) is therefore dispositive.

In any event, as in Energy Research, the same result obtains under a functional analysis.

“Soucie itself recognized that an entity in the federal government which ‘investigates, evaluates

and recommends’ is an ‘agency.’” Energy Research,

(quoting Soucie,

n.15). The Commission “performs precisely these functions.”

Its mandate is to

evaluate advances in artificial intelligence, and it must consider many factors in conducting this

review. See

(a)(1), (b)(1)–(2). The Commission has received

several briefings from other government agencies. See Compl. Ex. H. Its final report will

provide its “full findings and recommendations.”

In the Government’s view, EPIC has conceded that the Commission is not an “agency”

under a functional analysis. See Gov’t Reply at 14–15. The Court is not so sure. True, EPIC

12 agreed with the Government’s characterization of the Commission as “possess[ing] no

independent authority” and “purely advisory in nature.” EPIC’s Opp’n at 30. But that was part

of EPIC’s argument for why congressional appointment of the Commission’s members does not

violate the Appointments Clause, U.S. Const. art. II, § 2, cl. 2. See EPIC’s Opp’n at 29–30.

EPIC never discussed whether the Commission is an “agency” under a functional test, since it

argued that this test was irrelevant. See id. at 24–27.

It is also somewhat ironic for the Government to be insisting that the Commission

possesses no “independent authority” under Soucie. Recall that the question is whether an entity

exercises substantial authority independent of the President. See CREW.,

. The

Government apparently believes that the Commission does not wield this authority. Yet at the

same time, the Government stresses that the President “exerts no control over the Commission’s

functioning.” Gov’t Mem. at 19.

As the functional test is not relevant here, the Court need not press the point more.

Suffice it to say that the Commission’s functions match the functions that were enough for

Energy Research to call the Nuclear Board an “agency.” See

.

Third, the Government reads far too much into the Soucie line of cases. These cases do

not hold that the functional test applies whenever imposing FOIA on an entity would raise

separation of powers concerns. They stand for the much narrower proposition that a functional

approach is apt when the question is whether an official or entity close to the President must

comply with FOIA. “Failure to exempt presidential staff from the FOIA would raise a

constitutional issue of separation of powers.” Ryan v. DOJ,

, 788 n.19 (D.C. Cir.

1980). The reason is that imposing FOIA’s disclosure obligations on these officials would be “a

13 potentially serious congressional intrusion into the conduct of the President’s daily operations.”

Judicial Watch, Inc. v. U.S. Secret Serv.,

(D.C. Cir. 2013). 5

That is what the 1974 conference report is about—the conferees wanted to excuse from

FOIA “the President’s immediate personal staff or units in the Executive Office whose sole

function is to advise and assist the President.” H.R. Conf. Rep. No. 93-1380, at 15. So the cases

that rely on this legislative history apply a functional analysis given a specific separation of

powers concern. That specific concern is not at issue here. This case does not involve

presidential staff or an entity in the White House. Indeed, the Government stresses that the

Commission is far removed from the President. It notes that most of the Commission’s members

are congressionally appointed and that the President “exerts no control over the Commission’s

functioning.” Gov’t Mem. at 19. The Government believes it would be problematic “if the

Commission were actually located within the executive branch.” Id. at 18.

On that view, the Commission must be either an agent of Congress or an independent

agency. The Government fails to explain why it would violate separation of powers for

Congress to impose FOIA on either type of entity. Nor is any constitutional problem apparent.

While Congress has yet to do so, surely it is free to impose the same transparency requirements

5 The Government here has not challenged the application of FOIA to the Executive Branch more generally. Cf. William P. Barr, Attorney Gen., U.S. Dep’t of Justice, 19th Annual Barbara K. Olson Memorial Lecture (Nov. 15, 2019), https://www.justice.gov/opa/speech/attorney- general-william-p-barr-delivers-19th-annual-barbara-k-olson-memorial-lecture (remarks as prepared for delivery) (“[W]e all understand that confidential communications and a private, internal deliberative process are essential for all of our branches of government to properly function. . . . Yet Congress has happily created a regime [under FOIA] that allows the public to seek whatever documents it wants from the Executive Branch at the same time that individual congressional committees spend their days trying to publicize the Executive’s internal decisional process. That process cannot function properly if it is public[.]”).

14 on its own agents that it has imposed on the Executive Branch. And imposing disclosure

obligations on independent agencies would not intrude on the President’s daily operations.

For these reasons, the D.C. Circuit’s decision in Judicial Watch is distinguishable. The

Government never describes the facts of this case, but repeatedly cites it for the proposition that

separation of powers always mandates a functional approach when interpreting FOIA. See id. at

14–17, 19. A close look reveals a more modest holding.

The question in Judicial Watch was whether White House visitor logs in the Secret

Service’s possession were “agency records” under FOIA. See

. The Secret

Service is not in the President’s Executive Office, but the court held that some of these logs were

not agency records—the logs that disclosed “the appointment calendars of the President and his

close advisors.”

One reason for this holding was that documents in the possession of the

President and his advisers “are excluded from FOIA.” See

at 224–25. That much was clear

from FOIA’s implicit carveout for “the President’s immediate personal staff or units in the

Executive Office whose sole function is to advise and assist the President.” See

(quoting

Kissinger,

). This carveout avoids “render[ing] FOIA a potentially serious

congressional intrusion into the conduct of the President’s daily operations.”

.

Allowing plaintiffs to access the President’s appointment calendars simply by targeting the

Secret Service would have undermined this legislative scheme. See

at 225–27. The court

thought it implausible that Congress intended this loophole. See

.

This case, by contrast, implicates no loophole. The Government has not claimed that

EPIC is trying to use its FOIA request to access the records of the President or his close advisers.

Recall that the Government emphasizes how the Commission is far removed from the President.

So the separation of powers concerns in Judicial Watch are irrelevant.

15 The Government insists, however, that the D.C. Circuit has at other times applied

Soucie’s functional test to entities not in the White House. See Gov’t Mem. at 16–17; Gov’t

Reply at 12 n.2. Like Judicial Watch, these cases are all distinguishable, and none of them

requires the Court to apply a functional test here.

First up is the D.C. Circuit’s holding in September 1974 that biomedicine research

panels, called initial review groups, were not agencies subject to FOIA. See Wash. Research

Project, Inc. v. Dep’t of Health, Educ. & Welfare,

(D.C. Cir. 1974). The court

applied Soucie’s functional test to determine whether an initial review group was an “authority of

the Government” under

(1). See

at 245–48. This decision came two months

before Congress amended FOIA to specify that “authority of the Government” included

“any . . . establishment in the executive branch.” See

Stat. 1561, 1564

(Nov. 21, 1974). So the court had no occasion to consider whether a functional analysis is

necessary when Congress has said that an entity is an “establishment in the executive branch.”

The Government’s reliance on Washington Research Project is therefore misplaced.

Also misplaced is the Government’s reliance on Dong v. Smithsonian Institution,

(D.C. Cir. 1997). Dong held that the Smithsonian Institution was not an “agency”

under the Privacy Act.

. The Privacy Act “borrows the definition of ‘agency’ found in

FOIA,

(f).”

. The Smithsonian is not in the Executive Office, yet the

court applied Soucie’s functional approach. See

. The court opined, moreover,

that the method of appointment for the Smithsonian’s Regents “would appear to violate the

Constitution’s separation of powers principles.”

. From this, the Government contends

that a functional approach applies for units not in the Executive Office “when separation of

16 powers issues exist.” Gov’t Mem. at 16, 18–19. Dong does not stand for that proposition.

Indeed, the Government’s reading of Dong takes much of its analysis out of context.

It helps to read Dong, as with any opinion, from beginning to end. The decision began by

observing that an “agency” under FOIA and the Privacy Act “encompasses not only all entities

covered by § 552(f) but also all those described by § 551(1).”

. So to be an

“agency,” an entity “must fit into one of the categories set forth either in § 552(f) or § 551(1).”

Id. (emphasis added). The court first asked whether the Smithsonian fit into any categories in

§ 552(f)(1). Id. It considered two candidates: “establishment in the executive branch” and

“Government controlled corporation.” Id. But the Smithsonian was neither. Id. at 879–80.

Separation of powers was one reason the Smithsonian was not an “establishment in the

executive branch.” See id. at 879. Most members of the Smithsonian’s Board of Regents were

either congressional appointees or members of Congress. Id. The court commented that this

method of appointing the Regents “would appear to violate the Constitution’s separation of

powers principles” if the Smithsonian “were to wield executive powers.” Id.

The Government believes that the same reasoning applies here, since members of

Congress appoint most of the Commission’s members. See Gov’t Mem. at 19. But Dong is

distinguishable on this score. Congress did not specify whether the Smithsonian was an

“establishment in the executive branch.” See

. So in answering that question, it

made sense for Dong to consider non-textual factors such as separation of powers. See

.

Only after concluding that the Smithsonian did not fit into any categories in § 552(f)(1)

did the court apply Soucie’s functional approach. See

. It did so to determine

whether the Smithsonian was an “authority of the Government” under § 551(1). See id. at 880–

17 81. Dong simply did not make the step that the Government insists it made. The court did not

apply a functional test because of separation of powers concerns. It applied a functional test

because the Smithsonian was neither an “establishment in the executive branch” nor a

“Government controlled corporation.” See id. at 880.

Here, by contrast, Congress has said that the Commission is an “establishment in the

executive branch.” See

(a). That is the end of the matter. See

Energy Research, 917 F.2d at 582–84. Non-textual factors such as separation of powers do not

bear on whether the Commission is an “establishment in the executive branch.” 6 The Court

need not apply a functional approach to determine whether the Commission is an “authority of

the Government” under § 551(1).

Indeed, Dong made clear that Soucie’s “substantial independent authority” test

determines whether an entity is an agency “for § 551(1) purposes.” Id. at 881 (emphasis added).

The court observed that it had applied this test in two cases that did not involve entities in the

White House, citing Energy Research and Washington Research Project. See id. But neither

case requires a functional analysis when, as here, Congress has said that an entity is an

“establishment in the executive branch,” i.e., one of the specific categories in § 552(f)(1). See

supra.

6 Also keep in mind that the interpretive question here is whether the Commission is subject to FOIA. If constitutional avoidance were relevant, it would be because of the separation of powers problems that might arise if the Commission were subject to FOIA. If the very existence or structure of the Commission is unconstitutional, that is a separate question not at issue here. The Government therefore goes beyond this case when it suggests that the method of appointing the Commission’s members violates the Appointments Clause. See Gov’t Mem. at 19. So too when it suggests that Congress has created an entity that unconstitutionally exercises executive powers. See Gov’t Reply at 9–10 (citing Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc.,

(1991)).

18 The Government next cites a pair of cases that concluded the Tax Court is not an

“agency” subject to FOIA. Gov’t Mem. at 17; see Megibow v. Clerk of the U.S. Tax Court,

(2d Cir. 2005) (per curiam) (adopting the reasoning of Megibow v. Clerk of the

U.S. Tax Court, No. 04 Civ. 3321,

(S.D.N.Y. Aug. 31, 2004)); Byers v. U.S.

Tax Court,

(D.D.C. 2016). Megibow examined the Tax Court’s functions

and determined that it was a court, rather than an entity in the Executive Branch. See No. 04

Civ. 3321,

, at *5. Byers, meanwhile, had the benefit of a decision that had

deemed the Tax Court “part of the Executive Branch” in the context of “a separation of powers

analysis.” See

(citing Kuretski v. Comm’r,

(D.C. Cir.

2014)). Relying on Kuretski, the plaintiff in Byers argued that the Tax Court was necessarily an

“establishment in the executive branch” subject to FOIA. See id. at 248. The court rejected that

argument. See id.

Both Megibow and Byers are distinguishable. Those cases dealt with an exception to

FOIA for “the courts of the United States.”

(1)(B). As Byers put it: “If the Tax

Court is one of the ‘courts of the United States,’ it must be exempt from FOIA, even if it is part

of the Executive Branch.”

. The exception for “courts of the United

States” is of course not relevant here.

In sum, an “agency” subject to FOIA includes “any . . . establishment in the executive

branch.”

(f)(1). Congress chose to call the Commission an “establishment in the

executive branch.” See

(a). The Government has not convinced the

Court that it should ignore what Congress said. And even under the Government’s preferred

functional approach, the Commission is still subject to FOIA. The Court thus concludes that the

Commission must comply with FOIA.

19 C.

The Government contends that the Court can dismiss Counts VI and VII at this stage

even if the Commission is an agency. See Gov’t Mem. at 12–13. Recall that Count VI asserts a

claim under FOIA based on the failure of the Commission and DOD to comply with the statute’s

deadlines. Compl. ¶¶ 147–52. Count VII alleges that the Commission and DOD unlawfully

denied expedited processing of EPIC’s FOIA requests.

¶¶ 154–58.

To begin, the Court sees nothing procedurally improper with the Government’s choice to

seek dismissal of Counts VI and VII in the present motion. The Court observes, however, that

Counts VI and VII now have little, if any, practical relevance. The Government has not yet

sought dismissal of Count VIII, which alleges that both the Commission and DOD have

“wrongfully withheld agency records” under FOIA.

¶¶ 160–61. 7 Since the Commission is an

agency subject to FOIA, Count VIII against that entity will remain for now. EPIC’s FOIA

request was the first one the Commission received, see Tr. of Prelim. Inj. Hr’g at 31, so EPIC’s

request will automatically take precedence, even if it cannot meet the criteria for expedited

processing. DOD, of course, already has thousands of other pending requests. Compl. Ex. C.

But the Commission, not DOD, likely has the records that EPIC wants. See Tr. of Prelim. Inj.

Hr’g at 32. So if this matter proceeds as a standard FOIA case against the Commission under

Count VIII, EPIC would be on track to get as much relief as it can, no matter what the Court

does with Counts VI or VII.

1.

In any event, the Court declines to dismiss either count now. Count VI alleges that both

the Commission and DOD violated various statutory deadlines related to EPIC’s FOIA requests.

7 The Government is “separately answering” Count VIII. Partial Mot. to Dismiss at 1 n.1.

20 See Compl. ¶¶ 147–50. The Government contends that the Court should dismiss Count VI

because it is superfluous. See Gov’t Mem. at 26. That is, violation of statutory deadlines is “not

an independent basis for a claim,” Roseberry-Andrews v. DHS,

(D.D.C.

2018), but it is merely a reason why FOIA requesters can sue in the first place. See Citizens for

Responsibility & Ethics in Wash. v. FEC,

, 189–90 (D.C. Cir. 2013).

Since violation of FOIA’s deadlines goes to whether EPIC has exhausted its

administrative remedies, see

Count VI is intertwined with the other two FOIA counts,

including the yet-unanswered Count VIII. Based on EPIC’s allegations, it appears that the

Commission and DOD violated at least three deadlines. DOD did not make a “determination” on

EPIC’s FOIA request within 20 days. Compl. ¶¶ 106–07, 149. After DOD denied EPIC’s

request for expedited processing, it never made a “determination” on EPIC’s administrative

appeal of that denial.

¶¶ 109–10, 150. And the Commission failed to make a “determination”

on EPIC’s request for expedited processing within ten days. Id. ¶¶ 95, 97, 148. Exhaustion of

administrative remedies may yet become an issue once the Government answers Count VIII. So

the Court finds it best to hold off for now disposing of Count VI. 8 If exhaustion does not

become an issue, the Court will decide at a later point, if necessary, what to do with this count.

If the Government is correct that Count VI provides no independent basis for relief, it has

nothing to fear from that claim in the meantime. The Court will not dismiss Count VI now.

8 One paragraph in Count VI alleges that the Commission failed to make a timely determination on EPIC’s September 11 FOIA request. Compl. ¶ 147. FOIA gives the agency at least 20 days to make this determination. See

(a)(6)(A)(i), (a)(6)(B)(i). But EPIC filed its Complaint on September 27, only 16 days after its September 11 request. Compl. ¶ 95. Based on this, the Government contends that the Court may dismiss as premature “Plaintiff’s claim that the AI Commission did not respond timely to its FOIA request.” Gov’t Mem. at 12 n.4. At this stage, however, the Court declines to excise paragraph 147 from Count VI. EPIC’s rush to the courthouse may or may not be relevant to Count VIII, but the Government is not currently seeking dismissal of Count VIII. See Partial Mot. to Dismiss at 1 n.1.

21 2.

As to Count VII, the Court holds that EPIC has stated a plausible claim that DOD and the

Commission unlawfully denied expedited processing. A FOIA requester gets expedited

processing if it “demonstrates a compelling need.”

(a)(6)(E)(i)(I). As relevant

here, “compelling need” means “urgency to inform the public concerning actual or alleged

Federal Government activity.”

§ 552(a)(6)(E)(v)(II). The Government contends that EPIC

fails to establish this sort of “urgency.” See Gov’t Mem. at 22–26.

To answer this question, “courts must consider at least three factors: (1) whether the

request concerns a matter of current exigency to the American public; (2) whether the

consequences of delaying a response would compromise a significant recognized interest; and

(3) whether the request concerns federal government activity.” Al-Fayed v. CIA,

(D.C. Cir. 2001). EPIC has plausibly alleged that its requests met all three factors.

The third factor is the most straightforward. EPIC sought records about the work of the

Commission, a federal agency, and EPIC asserts the records are also relevant to action that the

President or Congress may take in response to the Commission’s recommendations. See Compl.

¶¶ 91, 101. EPIC has thus plausibly alleged that its requests concerned “federal government

activity.”

The Court’s conclusion is the same for the first and second factors. When EPIC

requested expedited processing from DOD in February 2019, the Commission had not yet

released its initial report, let alone its interim report. See id. ¶ 101. There was still no interim

report when EPIC requested expedited processing from the Commission in September. See id.

¶ 90. EPIC claimed that the findings in these reports would affect government policy. See id.

¶¶ 91, 101. It was thus urgent that the public have access to these reports and related records,

22 such as briefing materials and minutes from meetings. See id. ¶¶ 90, 101. Access would allow

EPIC and the public to understand and critique the Commission’s work. The Commission will

submit its “full findings and recommendations” in August 2020, see Compl. Ex. I, so if records

remain out of public view, EPIC and the public might have little opportunity to influence the

Commission’s recommendations.

EPIC also makes other allegations that suggest the Commission’s work was and remains

a matter of “current exigency” and that delay in receiving records would compromise a

“significant recognized interest.” For example, the President has launched an “American AI

Initiative” by Executive Order. See Compl. ¶¶ 35, 101; id. Ex. B at 4 & n.22. So the

Government itself is prioritizing artificial intelligence. Yet the Commission “has operated

almost entirely in secret.” Compl. ¶ 59. And EPIC stresses that policy in this area could reshape

privacy and human rights. Id. ¶¶ 5, 22–26. Evidence such as news articles and other

contemporary documents may illuminate whether EPIC’s FOIA requests meet the “urgency to

inform” standard. The Court concludes only that EPIC has strung together enough allegations on

this score to pass the plausibility threshold. The Court thus will not dismiss Count VII.

IV. For all these reasons, it is hereby

ORDERED that the Government’s [23] Motion to Dismiss FOIA Claims is DENIED.

SO ORDERED.

2019.12.03 16:24:11 -05'00' Dated: December 3, 2019 TREVOR N. McFADDEN, U.S.D.J.

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