Government Officials' Internet Browsing Histories Are Not Agency Records under FOIA

The D.C. Circuit rejects an effort to obtain internet browsing histories under the Freedom of Information Act

The Cause of Action Institute sought to obtain the internet browsing histories of several government officials, including the Secretary of Agriculture and Director of the Office of Management and Budget, under the Freedom of Information Act (FOIA). A district court rejected their claim, concluding that browsing histories are not agency records under FOIA. Yesterday a panel of the U.S. Court of Appeals for the D.C. Circuit agreed.

In Cause of Action Institute v. OMB, Judge Rao (joined by Judges Srinivasan and Sentelle) agreed with the district court that federal agencies do not exercise the requisite degree of control over internet browsing histories for the histories to constitute agency records subject to FOIA disclosure. As Judge Rao explained, the "agencies' retention and access policies for browsing histories, along with the fact they did not use any of the officials' browsing histories for any reason, lead to the conclusion that these documents are not agency records."

Interestingly enough, the court's reasoning suggests that the outcome could change were a federal agency to exercise greater control over government officials' internet browsing histories, such as by limiting the ability of individual officials to delete or modify their histories. I would not expect that to happen, however. Under the assumption that most federal agencies try to resist FOIA most of the time (a safe, if ungenerous, general assumption about agency behavior), the decision is also likely to dissuade agencies from adopting policies that could make internet browsing histories subject to FOIA in the future.