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Electronic Privacy Information Center v. National Security Commission on Artificial Intelligence

United States District Court, District of Columbia

December 3, 2019



          TREVOR N. McFADDEN, U.S.D.J.

         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”), 5 U.S.C. § 552. 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.


         Congress gave the Commission its marching orders in the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (“NDAA”). See Pub. L. No. 115-232, § 1051, 132 Stat. 1636, 1962-65 (2018). Its mandate is “to review advances in artificial intelligence, related machine learning developments, and associated technologies.” Id. § 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. Pub. L. No. 115-232, § 1051(e).[1] Before then, the Commission must submit one final report to the President and Congress. See Id. § 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. ¶ 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 5 U.S.C. § 552(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. Id. Second, the Commission was “operating at a time when the White House has launched the ‘American AI Initiative.'” Id. So the Commission's “findings, recommendations, and proceedings” would “have significant influence on AI policymaking by both Congress and the executive branch.” Id.

         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.” Id. 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.” Id. 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. Id. at 8-9. EPIC said it was urgent to inform the public about the Commission's activities before it released its interim report. Id. 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.” Id. at 9. 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. Id. ¶ 95. The Complaint raises three claims under FOIA, two claims under FACA, and three claims under the Administrative Procedure Act. See Id. ¶¶ 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 Id. at 32. The Commission has no other pending FOIA requests or even a FOIA apparatus. Id. at 28, 31. Indeed, the Government claimed that the Commission is not subject to FOIA. Id. at 28. The Court thus ordered expedited briefing on this threshold question. See Id. 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 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. Id. ¶¶ 154-58.


         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, 550 U.S. 544, 570 (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, 865 F.3d 643, 649 (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, 556 U.S. 662, 678 (2009).



         “By its terms, FOIA applies only to an ‘agency.'” CREW v. Office of Admin., 566 F.3d 219, 222 (D.C. Cir. 2009); see 5 U.S.C. § 552(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.” 5 U.S.C. § 551(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 establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” Id. § 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[.]” Pub. L. No. 115-232, § 1051(a)(1) (emphasis added). That Commission “shall be considered an independent establishment of the Federal Government as defined by section 104 of title 5.” Id. § 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.” 5 U.S.C. § 104(1) (emphasis added). Congress could have hardly been clearer. Having said that FOIA applies to “any . . . establishment in the executive branch, ” id. § 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., 917 F.2d 581, 582 (D.C. Cir. 1990). The Board's organic statute declared: “There is hereby established an independent establishment in the executive branch.” 42 U.S.C. § 2286(a). The Board claimed it was not subject to FOIA, but the D.C. Circuit disagreed. See Energy Research, 917 F.2d at 581. 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.

         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 5 U.S.C. § 104. Congress said simply “[t]here is established a commission . . . known as the ‘Cyberspace Solarium Commission.'” Id. § 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 5 U.S.C. § 552(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.” 24 U.S.C. § 411(a).
• “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.” 20 U.S.C. § 4703(a).
• “There is established, as an independent establishment of the executive branch of the United States Government, the Harry S. Truman Scholarship Foundation.” 20 U.S.C. § 2004(a).
• “[T]here is established, as an independent establishment of the executive branch, the James Madison Memorial Fellowship Foundation.” 20 U.S.C. § 4502(a).
• “There shall be an independent establishment in the executive branch of the Government to be known as the National Archives and Records ...

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