Internet Law

DC Circuit rules against group seeking internet browsing histories of government officials

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Internet browsing histories of government officials sought by a watchdog group aren’t “agency records” subject to disclosure under the Freedom of Information Act, a federal appeals court has ruled.

The U.S. Court of Appeals for the District of Columbia Circuit ruled Aug. 20 against the Cause of Action Institute, a nonprofit that advocates for accountable government, report the Volokh Conspiracy and Law360.

The institute had sought browsing histories of several senior agency officials, including former Trump administration officials Mick Mulvaney, who was the director of the Office of Management and Budget, and Sonny Perdue, who was the secretary of the U.S. Department of Agriculture.

The term “agency records” extends to records that an agency creates or obtains and that an agency controls at the time that the FOIA request was made. The parties didn’t dispute that they created the browsing histories but contended that they did not control them.

The D.C. Circuit, in an opinion by Judge Neomi Rao, agreed with the agencies.

The Office of Management and Budget and the USDA give their employees significant control over browsing histories, and neither agency had an intent to retain and control browsing histories, Rao said. The agencies didn’t use browsing histories for any purpose, including any purpose related to agency decision-making. And routine maintenance could cause deletion of the histories.

In light of those facts, the browsing histories are not agency records subject to disclosure, Rao said.

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