Electronic Privacy Information Center v. Presidential Advisory Commission on Election Integrity

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY
INFORMATION CENTER,
Plaintiff,
v.
Civil Action No. 17-1320 (CKK)
PRESIDENTIAL ADVISORY
COMMISSION ON ELECTION
INTEGRITY, et al.,
Defendants.

MEMORANDUM OPINION
(July 24, 2017)

This case arises from the establishment by Executive Order of the Presidential

Advisory Commission on Election Integrity (the “Commission”), and a request by that

Commission for each of the 50 states and the District of Columbia to provide it with certain

publicly available voter roll information. Pending before the Court is Plaintiff’s [35]

Amended Motion for Temporary Restraining Order and Preliminary Injunction, which

seeks injunctive relief prohibiting Defendants from “collecting voter roll data from states

and state election officials” and directing Defendants to “delete and disgorge any voter roll

data already collected or hereafter received.” Proposed TRO, ECF No. 35-6, at 1-2.

Although substantial public attention has been focused on the Commission’s

request, the legal issues involved are highly technical. In addition to the Fifth Amendment

of the Constitution, three federal laws are implicated: the Administrative Procedure Act, 5

U.S.C. § 551 et seq. (“APA”), the E-Government Act of 2002, Pub. L. No. 107-347, 116

Stat. 2899 (“E-Government Act”), and the Federal Advisory Committee Act, codified at 5

U.S.C. app. 2 (“FACA”). All three are likely unfamiliar to the vast majority of Americans,

and even seasoned legal practitioners are unlikely to have encountered the latter two.

1
Matters are further complicated by the doctrine of standing, a Constitutional prerequisite

for this Court to consider the merits of this lawsuit.

Given the preliminary and emergency nature of the relief sought, the Court need

not at this time decide conclusively whether Plaintiff is, or is not, ultimately entitled to

relief on the merits. Rather, if Plaintiff has standing to bring this lawsuit, then relief may

be granted if the Court finds that Plaintiff has a likelihood of succeeding on the merits, that

it would suffer irreparable harm absent injunctive relief, and that other equitable factors—

that is, questions of fairness, justice, and the public interest—warrant such relief.

The Court held a lengthy hearing on July 7, 2017, and has carefully reviewed the

parties’ voluminous submissions to the Court, the applicable law, and the record as a whole.

Following the hearing, additional defendants were added to this lawsuit, and Plaintiff filed

the pending, amended motion for injunctive relief, which has now been fully briefed. For

the reasons detailed below, the Court finds that Plaintiff has standing to seek redress for

the informational injuries that it has allegedly suffered as a result of Defendants declining

to conduct and publish a Privacy Impact Assessment pursuant to the E-Government Act

prior to initiating their collection of voter roll information. Plaintiff does not, however,

have standing to pursue Constitutional or statutory claims on behalf of its advisory board

members.

Although Plaintiff has won the standing battle, it proves to be a Pyrrhic victory. The

E-Government Act does not itself provide for a cause of action, and consequently, Plaintiff

must seek judicial review pursuant to the APA. However, the APA only applies to “agency

action.” Given the factual circumstances presently before the Court—which have changed

substantially since this case was filed three weeks ago—Defendants’ collection of voter

2
roll information does not currently involve agency action. Under the binding precedent of

this circuit, entities in close proximity to the President, which do not wield “substantial

independent authority,” are not “agencies” for purposes of the APA. On this basis, neither

the Commission or the Director of White House Information Technology—who is

currently charged with collecting voter roll information on behalf of the Commission—are

“agencies” for purposes of the APA, meaning the Court cannot presently exert judicial

review over the collection process. To the extent the factual circumstances change,

however—for example, if the de jure or de facto powers of the Commission expand beyond

those of a purely advisory body—this determination may need to be revisited. Finally, the

Court also finds that Plaintiff has not demonstrated an irreparable informational injury—

given that the law does not presently entitle it to information—and that the equitable and

public interest factors are in equipoise. These interests may very well be served by

additional disclosure, but they would not be served by this Court, without a legal mandate,

ordering the disclosure of information where no right to such information currently exists.

Accordingly, upon consideration of the pleadings, 1 the relevant legal authorities, and the

record as a whole, Plaintiff’s [35] Motion for a Temporary Restraining Order and

Preliminary Injunction is DENIED WITHOUT PREJUDICE. 2

1
The Court’s consideration has focused on the following documents:

• Mem. in Supp. of Pl.’s Am. Mot. for a TRO and Prelim. Inj., ECF No. 35-1 (“Pls.
Am. Mem.”);
• Defs.’ Mem. in Opp’n to Pl.’s Am. Mot. for a TRO and Prelim. Inj., ECF No. 38
(“Am. Opp’n Mem.”);
• Reply in Supp. of Pl.’s Am. Mot. for a TRO and Prelim. Inj., ECF No. 39 (“Am.
Reply Mem.”).
2
For the avoidance of doubt, the Court denies without prejudice both Plaintiff’s motion for
a temporary restraining order, and its motion for a preliminary injunction.
3
 I. BACKGROUND

The Commission was established by Executive Order on May 11, 2017. Executive

Order No. 13,799, 82 Fed. Reg. 22,389 (May 11, 2017) (“Exec. Order”). According to the

Executive Order, the Commission’s purpose is to “study the registration and voting

processes used in Federal elections.” Id. § 3. The Executive Order states that the

Commission is “solely advisory,” and that it shall disband 30 days after submitting a report

to the President on three areas related to “voting processes” in federal elections. Id. §§ 3,

6. The Vice President is the chair of the Commission, and the President may appoint 15

additional members. From this group, the Vice President is permitted to appoint a Vice

Chair of the Commission. The Vice President has named Kris W. Kobach, Secretary of

State for Kansas, to serve as the Vice Chair. Decl. of Kris Kobach, ECF No. 8-1 (“Kobach

Decl.”), ¶ 1. Apart from the Vice President and the Vice Chair, there are presently ten other

members of the Commission, including Commissioner Christy McCormick of the Election

Assistance Commission (the “EAC”), who is currently the only federal agency official

serving on the Commission, and a number of state election officials, both Democratic and

Republican, and a Senior Legal Fellow of the Heritage Foundation. Lawyers’ Committee

for Civil Rights Under the Law v. Presidential Advisory Commission on Election Integrity,

No. 17-cv-1354 (D.D.C. July 10, 2017), Decl. of Andrew J. Kossack, ECF No. 15-1

(“Kossack Decl.”), ¶ 1; Second Decl. of Kris W. Kobach, ECF No. 11-1 (“Second Kobach

Decl.”), ¶ 1. According to Defendants, “McCormick is not serving in her official capacity

as a member of the EAC.” Second Kobach Decl. ¶ 2. The Executive Order also provides

that the General Services Administration (“GSA”), a federal agency, will “provide the

Commission with such administrative services, funds, facilities, staff, equipment, and other

4
support services as may be necessary to carry out its mission on a reimbursable basis,” and

that other federal agencies “shall endeavor to cooperate with the Commission.” Exec.

Order, § 7.

Following his appointment as Vice Chair, Mr. Kobach directed that identical letters

“be sent to the secretaries of state or chief election officers of each of the fifty states and

the District of Columbia.” Kobach Decl. ¶ 4. In addition to soliciting the views of state

officials on certain election matters by way of seven broad policy questions, each of the

letters requests that state officials provide the Commission with the “publicly available

voter roll data” of their respective states, “including, if publicly available under the laws of

[their] state, the full first and last names of all registrants, middle names or initials if

available, addresses, dates of birth, political party (if recorded in your state), last four digits

of social security number if available, voter history (elections voted in) from 2006 onward,

active/inactive status, cancelled status, information regarding any felony convictions,

information regarding voter registration in another state, information regarding military

status, and overseas citizen information.” Kobach Decl., Ex. 3 (June 28, 2017 Letter to the

Honorable John Merrill, Secretary of State of Alabama). The letters sent by Mr. Kobach

also indicate that “[a]ny documents that are submitted to the full Commission will . . . be

made available to the public.” Id. Defendants have represented that this statement applies

only to “narrative responses” submitted by states to the Commission. Id. ¶ 5. “With respect

to voter roll data, the Commission intends to de-identify any such data prior to any public

release of documents. In other words, the voter rolls themselves will not be released to the

public by the Commission.” Id. The exact process by which de-identification and

publication of voter roll data will occur has yet to be determined. Hr’g Tr. 36:20–37:8.

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 Each letter states that responses may be submitted electronically to an email

address, ElectionIntegrityStaff@ovp.eop.gov, “or by utilizing the Safe Access File

Exchange (‘SAFE’), which is a secure FTP site the federal government uses for transferring

large data files.” Kobach Decl., Ex. 3. The SAFE website is accessible at

https://safe.amrdec.army.mil/safe/ Welcome.aspx. Defendants have represented that it was

their intention that “narrative responses” to the letters’ broad policy questions should be

sent via email, while voter roll information should be uploaded by using the SAFE system.

Id. ¶ 5.

According to Defendants, the email address named in the letters “is a White House

email address (in the Office of the Vice President) and subject to the security protecting all

White House communications and networks.” Id. Defendants, citing security concerns,

declined to detail the extent to which other federal agencies are involved in the maintenance

of the White House computer system. Hr’g Tr. 35:2-10. The SAFE system, however, is

operated by the U.S. Army Aviation and Missile Research Development and Engineering

Center, a component of the Department of Defense. Second Kobach Decl. ¶ 4; Hr’g Tr.

32:6–9. The SAFE system was “originally designed to provide Army Missile and Research,

Development and Engineering Command (AMRDEC) employees and those doing

business with AMRDEC an alternate way to send files.” Safe Access File Exchange (Aug.

8, 2012), available at http://www.doncio.navy.mil/ContentView.aspx?id=4098 (last

accessed July 20, 2017). The system allows “users to send up to 25 files securely to

recipients within the .mil or .gov domains[,]” and may be used by anyone so long as the

recipient has a .mil or .gov email address. After an individual uploads data via the SAFE

system, the intended recipient receives an email message indicating that “they have been

6
given access to a file” on the system, and the message provides instructions for accessing

the file. The message also indicates the date on which the file will be deleted. This “deletion

date” is set by the originator of the file, and the default deletion date is seven days after the

upload date, although a maximum of two weeks is permitted.

Defendants portrayed the SAFE system as a conduit for information. Once a state

had uploaded voter roll information via the system, Defendants intended to download the

data and store it on a White House computer system. Second Kobach Decl. ¶ 5. The exact

details of how that would happen, and who would be involved, were unresolved at the time

of the hearing. Hr’g Tr. 34:3–35:10; 35:23–36:9. Nonetheless, there is truth to Defendants’

description. Files uploaded onto the system are not archived after their deletion date, and

the system is meant to facilitate the transfer of files from one user to another, and is not

intended for long-term data storage. As Defendants conceded, however, files uploaded onto

the SAFE system are maintained for as many as fourteen days on a computer system

operated by the Department of Defense. Hr’g Tr. 31:7–32:5; 36:1–9 (The Court: “You seem

to be indicating that DOD’s website would maintain it at least for the period of time until

it got transferred, right?” Ms. Shapiro: “Yes. This conduit system would have it for – until

it’s downloaded. So from the time it’s uploaded until the time it’s downloaded for a

maximum of two weeks and shorter if that’s what’s set by the states.”). Defendants stated

that as, of July 7, only the state of Arkansas had transmitted voter roll information to the

Commission by uploading it to the SAFE system. Hr’g Tr. 40:10–18. According to

Defendants, the Commission had not yet downloaded Arkansas’ voter data; and as of the

date of the hearing, the data continued to reside on the SAFE system. Id.

Shortly after the hearing, Plaintiff amended its complaint pursuant to Federal Rule

7
of Civil Procedure 15(a)(1)(A), and added the Department of Defense as a defendant. Am.

Compl., ECF No. 21. The Court then permitted Defendants to file supplemental briefing

with respect to any issues particular to the Department of Defense. Order, ECF No. 23. On

July 10, Defendants submitted a Supplemental Brief, notifying the Court of certain factual

developments since the July 7 hearing. First, Defendants represented that the Commission

“no longer intends to use the DOD SAFE system to receive information from the states.”

Third Decl. of Kris W. Kobach, ECF No. 24-1 (“Third Kobach Decl.”), ¶ 1. Instead,

Defendants stated that the Director of White House Information Technology was working

to “repurpos[e] an existing system that regularly accepts personally identifiable

information through a secure, encrypted computer application,” and that this new system

was expected to be “fully functional by 6:00pm EDT [on July 10, 2017].” Id. Second,

Defendants provided the Court with a follow-up communication sent to the states, directing

election officials to “hold on submitting any data” until this Court resolved Plaintiff’s

motion for injunctive relief. Id., Ex. A. In light of these developments, Plaintiff moved to

further amend the complaint pursuant to Federal Rule of Civil Procedure 15(a)(2), to name

as additional defendants the Director of White House Information Technology, the

Executive Committee for Presidential Information Technology, and the United States

Digital Service, which the Court granted. Pl.’s Mot. to Am. Compl., ECF No. 30; Order,

ECF No. 31.

Given the “substantial changes in factual circumstances” since this action was

filed, the Court directed Plaintiff to file an amended motion for injunctive relief. Order,

ECF No. 31. Plaintiff filed the amended motion on July 13, seeking to enjoin Defendants

from “collecting voter roll data from states and state election officials” and to require

8
Defendants to “disgorge any voter roll data already collected or hereafter received.”

Proposed Order, ECF No. 35-6, at 1–2. Defendants’ response supplied additional

information about how the voter roll data would be collected and stored by the

“repurposed” White House computer system. See Decl. of Charles Christopher Herndon,

ECF No. 38-1 (“Herndon Decl.”), ¶¶ 3–6. According to Defendants, the new system

requires state officials to request an access link, which then allows them to upload data to

a “server within the domain electionintergrity.whitehouse.gov.” Id. ¶ 4. Once the files have

been uploaded, “[a]uthorized members of the Commission will be given access” with

“dedicated laptops” to access the data through a secure White House network. Id. ¶ 4–5.

Defendants represent that this process will only require the assistance of “a limited number

of technical staff from the White House Office of Administration . . . .” Id. ¶ 6. Finally,

Defendants represented that the voter roll data uploaded to the SAFE system by the state

of Arkansas—the only voter roll information known to the Court that has been transferred

in response to the Commission’s request—“ha[d] been deleted without ever having been

accessed by the Commission.” Id. ¶ 7.

II. LEGAL STANDARD

Preliminary injunctive relief, whether in the form of temporary restraining order or

a preliminary injunction, is “an extraordinary remedy that may only be awarded upon a

clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius, 644 F.3d 388,

392 (D.C. Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22

(2008)); see also Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (“[A] preliminary

injunction is an extraordinary and drastic remedy, one that should not be granted unless the

movant, by a clear showing, carries the burden of persuasion.” (emphasis in original;

9
quotation marks omitted)). A plaintiff seeking preliminary injunctive relief “must establish

[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm

in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and

[4] that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C.

Cir. 2014) (quoting Sherley, 644 F.3d at 392 (quoting Winter, 555 U.S. at 20) (alteration in

original; quotation marks omitted)). When seeking such relief, “‘the movant has the burden

to show that all four factors, taken together, weigh in favor of the injunction.’” Abdullah v.

Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp.,

571 F.3d 1288, 1292 (D.C. Cir. 2009)). “The four factors have typically been evaluated on

a ‘sliding scale.’” Davis, 571 F.3d at 1291 (citation omitted). Under this sliding-scale

framework, “[i]f the movant makes an unusually strong showing on one of the factors, then

it does not necessarily have to make as strong a showing on another factor.” Id. at 1291–

92. 3

III. DISCUSSION

A. Article III Standing

As a threshold matter, the Court must determine whether Plaintiff has standing to

3 The Court notes that it is not clear whether this circuit’s sliding-scale approach to
assessing the four preliminary injunction factors survives the Supreme Court’s decision in
Winter. See Save Jobs USA v. U.S. Dep’t of Homeland Sec., 105 F. Supp. 3d 108, 112
(D.D.C. 2015). Several judges on the United States Court of Appeals for the District of
Columbia Circuit (“D.C. Circuit”) have “read Winter at least to suggest if not to hold ‘that
a likelihood of success is an independent, free-standing requirement for a preliminary
injunction.’” Sherley, 644 F.3d at 393 (quoting Davis, 571 F.3d at 1296 (concurring
opinion)). However, the D.C. Circuit has yet to hold definitively that Winter has displaced
the sliding-scale analysis. See id.; see also Save Jobs USA, 105 F. Supp. 3d at 112. In any
event, this Court need not resolve the viability of the sliding-scale approach today, as it
finds that Plaintiff has failed to show a likelihood of success on the merits and irreparable
harm, and that the other preliminary injunction factors are in equipoise.

10
bring this lawsuit. Standing is an element of this Court’s subject-matter jurisdiction under

Article III of the Constitution, and requires, in essence, that a plaintiff have “a personal

stake in the outcome of the controversy . . . .” Warth v. Seldin, 422 U.S. 490, 498 (1975).

Consequently, a plaintiff cannot be a mere bystander or interested third-party, or a self-

appointed representative of the public interest; he or she must show that defendant’s

conduct has affected them in a “personal and individual way.” Lujan v. Defs. of Wildlife,

504 U.S. 555, 561 (1992). The familiar requirements of Article III standing are:

(1) that the plaintiff have suffered an “injury in fact”—an invasion of a
judicially cognizable interest which is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical; (2) that there be a
causal connection between the injury and the conduct complained of—the
injury must be fairly traceable to the challenged action of the defendant, and
not the result of the independent action of some third party not before the
court; and (3) that it be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.

Bennett v. Spear, 520 U.S. 154, 167 (1997) (citing Lujan, 504 U.S. at 560–61). The parties

have briefed three theories of standing. Two are based on Plaintiff’s own interests—for

injuries to its informational interests and programmatic public interest activities—while

the third is based on the interests of Plaintiff’s advisory board members. This latter theory

fails, but the first two succeed, for the reasons detailed below.

1. Associational Standing

An organization may sue to vindicate the interests of its members. To establish this

type of “associational” standing, Plaintiff must show that “(a) its members would otherwise

have standing to sue in their own right; (b) the interests it seeks to protect are germane to

the organization’s purpose; and (c) neither the claim asserted nor the relief requested

requires the participation of individual members in the lawsuit.” Ass’n of Flight Attendants-

CWA, AFL-CIO v. U.S. Dep’t of Transp., 564 F.3d 462, 464 (D.C. Cir. 2009) (internal

11
quotation marks omitted). Needless to say, Plaintiff must also show that it has “members”

whose interests it is seeking to represent. To the extent Plaintiff does not have a formal

membership, it may nonetheless assert organizational standing if “the organization is the

functional equivalent of a traditional membership organization.” Fund Democracy, LLC v.

S.E.C., 278 F.3d 21, 25 (D.C. Cir. 2002). For an organization to meet the test of functional

equivalency, “(1) it must serve a specialized segment of the community; (2) it must

represent individuals that have all the ‘indicia of membership’ including (i) electing the

entity’s leadership, (ii) serving in the entity, and (iii) financing the entity’s activities; and

(3) its fortunes must be tied closely to those of its constituency.” Washington Legal Found.

v. Leavitt, 477 F. Supp. 2d 202, 208 (D.D.C. 2007) (citing Fund Democracy, 278 F.3d at

25).

Plaintiff has submitted the declarations of nine advisory board members from six

jurisdictions representing that the disclosure of their personal information—including

“name, address, date of birth, political party, social security number, voter history,

active/inactive or cancelled status, felony convictions, other voter registrations, and

military status or overseas information”—will cause them immediate and irreparable harm.

ECF No. 35-3, Exs. 7–15. The parties disagree on whether these advisory board members

meet the test of functional equivalency. For one, Plaintiff’s own website concedes that the

organization “ha[s] no clients, no customers, and no shareholders . . . .” See About EPIC,

http://epic.org/epic/about.html (last accessed July 20, 2017). Contrary to this assertion,

however, Plaintiff has proffered testimony to the effect that advisory board members exert

substantial influence over the affairs of the organization, including by influencing the

matters in which the organization participates, and that advisory board members are

12
expected to contribute to the organization, either financially or by offering their time and

expertise. Hr’g Tr. 16:1–18:19; see also Decl. of Marc Rotenberg, ECF No. 35-5, Ex. 38,

¶¶ 8–12. In the Court’s view, however, the present record evidence is insufficient for

Plaintiff to satisfy its burden with respect to associational standing. There is no evidence

that members are required to finance the activities of the organization; that they have any

role in electing the leadership of the organization; or that their fortunes, as opposed to their

policy viewpoints, are “closely tied” to the organization. See id.; About EPIC,

http://epic.org/epic/about.html (last accessed July 20, 2017) (“EPIC works closely with a

distinguished advisory board, with expertise in law, technology and public policy. . . . EPIC

is a 501(c)(3) nonprofit. We have no clients, no customers, and no shareholders. We need

your support.” (emphasis added)); see also Elec. Privacy Info. Ctr. v. U.S. Dep’t of Educ.,

48 F. Supp. 3d 1, 22 (D.D.C. 2014) (“defendant raises serious questions about whether

EPIC is an association made up of members that may avail itself of the associational

standing doctrine”).

Furthermore, even if the Court were to find that Plaintiff is functionally equivalent

to a membership organization, the individual advisory board members who submitted

declarations do not have standing to sue in their own capacities. First, these individuals are

registered voters in states that have declined to comply with the Commission’s request for

voter roll information, and accordingly, they are not under imminent threat of either the

statutory or Constitutional harms alleged by Plaintiff. See Am. Opp’n Mem., at 13. Second,

apart from the alleged violations of the advisory board members’ Constitutional privacy

rights—the existence of which the Court assumes for purposes of its standing analysis, see

Parker v. D.C., 478 F.3d 370, 378 (D.C. Cir. 2007), aff’d sub nom. D.C. v. Heller, 554 U.S.

13
570 (2008)—Plaintiff has failed to proffer a theory of individual harm that is “actual or

imminent, [and not merely] conjectural or hypothetical . . . [,]” Bennett, 520 U.S. at 167.

Plaintiff contends that the disclosure of sensitive voter roll information would cause

immeasurable harm that would be “impossible to contain . . . after the fact.” Pl.’s Am.

Mem., at 13. The organization also alleges that the information may be susceptible to

appropriation for unspecified “deviant purposes.” Id. (internal citations omitted). However,

Defendants have represented that they are only collecting voter information that is already

publicly available under the laws of the states where the information resides; that they have

only requested this information and have not demanded it; and Defendants have clarified

that such information, to the extent it is made public, will be de-identified. See supra at [•].

All of these representations were made to the Court in sworn declarations, and needless to

say, the Court expects that Defendants shall strictly abide by them.

Under these factual circumstances, however, the only practical harm that Plaintiff’s

advisory board members would suffer, assuming their respective states decide to comply

with the Commission’s request in the future, is that their already publicly available

information would be rendered more easily accessible by virtue of its consolidation on the

computer systems that would ultimately receive this information on behalf of the

Commission. It may be true, as Plaintiff contends, that there are restrictions on how

“publicly available” voter information can be obtained in the ordinary course, such as

application and notification procedures. Hr’g Tr. 8:2–21. But even granting the assumption

that the Commission has or will receive information in a manner that bypasses these

safeguards, the only way that such information would be rendered more accessible for

nefarious purposes is if the Court further assumes that either the Commission systems are

14
more susceptible to compromise than those of the states, or that the de-identification

process eventually used by Defendants will not sufficiently anonymize the information

when it is publicized. Given the paucity of the record before the Court, this sequence of

events is simply too attenuated to confer standing. At most, Plaintiff has shown that its

members will suffer an increased risk of harm if their already publicly available

information is collected by the Commission. But under the binding precedent of the

Supreme Court, an increased risk of harm is insufficient to confer standing; rather, the harm

must be “certainly impending.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1143

(2013). Indeed, on this basis, two district courts in this circuit have concluded that even the

disclosure of confidential, identifiable information is insufficient to confer standing until

that information is or is about to be used by a third-party to the detriment of the individual

whose information is disclosed. See In re Sci. Applications Int’l Corp. (SAIC) Backup Tape

Data Theft Litig., 45 F. Supp. 3d 14, 25 (D.D.C. 2014); Welborn v. IRS, 218 F. Supp. 3d 64,

77 (D.D.C. 2016). In sum, the mere increased risk of disclosure stemming from the

collection and eventual, anonymized disclosure of already publicly available voter roll

information is insufficient to confer standing upon Plaintiff’s advisory board members.

Consequently, for all of the foregoing reasons, Plaintiff has failed to show that it has

associational standing to bring this lawsuit. 4

4
This obviates the need to engage in a merits analysis of Plaintiff’s alleged Constitutional
privacy right claims, which are based on the individual claims of its advisory board
members. See generally Pl.’s Am. Mem., at 30. Nonetheless, even if the Court were to
reach this issue, it would find that Plaintiff is unlikely to succeed on these claims because
the D.C. Circuit has expressed “grave doubts as to the existence of a constitutional right of
privacy in the nondisclosure of personal information.” Am. Fed’n of Gov’t Emps., AFL-
CIO v. Dep’t of Hous. & Urban Dev., 118 F.3d 786, 791 (D.C. Cir. 1997).
15
 2. Informational Standing

In order to establish informational standing, Plaintiff must show that “(1) it has

been deprived of information that, on its interpretation, a statute requires the government

or a third party to disclose to it, and (2) it suffers, by being denied access to that information,

the type of harm Congress sought to prevent by requiring disclosure.” Friends of Animals

v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016). “[A] plaintiff seeking to demonstrate that it

has informational standing generally ‘need not allege any additional harm beyond the one

Congress has identified.’” Id. (citing Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1544 (2016)).

Plaintiff has brought suit under the APA, for the failure of one or more federal agencies to

comply with Section 208 of the E-Government Act. That provision mandates that before

“initiating a new collection of information,” an agency must “conduct a privacy impact

assessment,” “ensure the review of the privacy impact assessment by the Chief Information

Officer,” and “if practicable, after completion of the review . . . , make the privacy impact

assessment publicly available through the website of the agency, publication in the Federal

Register, or other means.” E-Government Act, § 208(b). An enumerated purpose of the E-

Government Act is “[t]o make the Federal Government more transparent and accountable.”

Id. § 2(b)(9).

Plaintiff satisfies both prongs of the test for informational standing. First, it has

espoused a view of the law that entitles it to information. Namely, Plaintiff contends that

Defendants are engaged in a new collection of information, and that a cause of action is

available under the APA to force their compliance with the E-Government Act and to

require the disclosure of a Privacy Impact Assessment. Second, Plaintiff contends that it

has suffered the very injuries meant to be prevented by the disclosure of information

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pursuant to the E-Government Act—lack of transparency and the resulting lack of

opportunity to hold the federal government to account. This injury is particular to Plaintiff,

given that it is an organization that was “established . . . to focus public attention on

emerging privacy and civil liberties issues and to protect privacy, freedom of expression,

and democratic values in the information age.” About EPIC, https://www.epic.org/epic

/about.html (last accessed July 20, 2017). Plaintiff, moreover, engages in government

outreach by “speaking before Congress and judicial organizations about emerging privacy

and civil liberties issues[,]” id., and uses information it obtains from the government to

carry out its mission to educate the public regarding privacy issues, Hr’g Tr. 20:12–23.

Defendants have contested Plaintiff’s informational standing, citing principally to

the D.C. Circuit’s analysis in Friends of Animals. See Am. Opp’n Mem., at 14–20. There,

the court held that plaintiff, an environmental organization, did not have informational

standing under a statute that required the Department of the Interior (“DOI”), first, to make

certain findings regarding whether the listing of a species as endangered is warranted

within 12 months of determining that a petition seeking that relief “presents substantial

scientific or commercial information,” and second, after making that finding, to publish

certain information in the Federal Register, including under some circumstances, a

proposed regulation, or an “evaluation of the reasons and data on which the finding is

based.” Friends of Animals, 828 F.3d at 990–91 (internal quotation marks omitted) (citing

16 U.S.C. § 1533(b)(3)(B)). For example, part of the statute in Friends of Animals required

that:

17
 (B) Within 12 months after receiving a petition that is found under
subparagraph (A) to present substantial information indicating that the
petitioned action may be warranted, the Secretary shall make one of the
following findings: . . .

(ii) The petitioned action is warranted, in which case the Secretary shall
promptly publish in the Federal Register a general notice and the
complete text of a proposed regulation to implement such action in
accordance with paragraph (5).

16 U.S.C. § 1533(b)(3)(B)(ii). At the time plaintiff brought suit, the 12-month period had

elapsed, but the DOI had yet to make the necessary findings, and consequently had not

published any information in the Federal Register. In assessing plaintiff’s informational

standing, the D.C. Circuit focused principally on the structure of the statute that allegedly

conferred on plaintiff a right to information from the federal government. Friends of

Animals, 828 F.3d at 993. Solely on that basis, the court determined that plaintiff was not

entitled to information because a right to information (e.g., a proposed regulation under

subsection (B)(ii) or an evaluation under subsection (B)(iii)) arose only after the DOI had

made one of the three findings envisioned by the statute. True, the DOI had failed to make

the requisite finding within 12 months. But given the statutorily prescribed sequence of

events, plaintiff’s challenge was in effect to the DOI’s failure to make such a finding, rather

than to its failure to disclose information, given that the obligation to disclose information

only arose after a finding had been made. As such, the D.C. Circuit concluded that plaintiff

lacked informational standing.

The statutory structure here, however, is quite different. The relevant portion of

Section 208 provides the following:

18
 (b) PRIVACY IMPACT ASSESSMENTS.—
(1) RESPONSIBILITIES OF AGENCIES.
(A) IN GENERAL.—An agency shall take actions described under
subparagraph (B) before
(i) developing or procuring information technology that collects,
maintains, or disseminates information that is in an identifiable
form; or
(ii) initiating a new collection of information that—
(I) will be collected, maintained, or disseminated using
information technology; and
(II) includes any information in an identifiable form
permitting the physical or online contacting of a specific
individual, if identical questions have been posed to, or
identical reporting requirements imposed on, 10 or more
persons, other than agencies, instrumentalities, or employees
of the Federal Government.
(B) AGENCY ACTIVITIES.—To the extent required under
subparagraph (A), each agency shall—
(i) conduct a privacy impact assessment;
(ii) ensure the review of the privacy impact assessment by the
Chief Information Officer, or equivalent official, as determined
by the head of the agency; and
(iii) if practicable, after completion of the review under clause
(ii), make the privacy impact assessment publicly available
through the website of the agency, publication in the Federal
Register, or other means.

E-Government Act, § 208(b). As this text makes clear, the statutorily prescribed sequence

of events here is reversed from the sequence at issue in Friends of Animals. There, the DOI

was required to disclose information only after it had made one of three “warranted”

findings; it had not made any finding, and accordingly, was not obligated to disclose any

information. Here, the statute mandates that an “agency shall take actions described under

subparagraph (B) before . . . initiating a new collection of information . . . .” Id. (emphasis

added). Subparagraph (B) in turn requires the agency to conduct a Privacy Impact

Assessment, to have it reviewed by the Chief Information Officer or his equivalent, and to

publish the assessment, if practicable. The statute, given its construction, requires all three

of these events, including the public disclosure of the assessment, to occur before the

19
agency initiates a new collection of information. Assuming that the other facets of

Plaintiff’s interpretation of the law are correct—namely, that Defendants are engaged in a

new collection of information subject to the E-Government Act, that judicial review is

available under the APA, and that disclosure of a privacy assessment is “practicable”—

then Plaintiff is presently entitled to information pursuant to the E-Government Act,

because the disclosure of information was already supposed to have occurred; that is, a

Privacy Impact Assessment should have been made publicly available before Defendants

systematically began collecting voter roll information. Accordingly, unlike in Friends of

Animals, a review of the statutory text at issue in this litigation indicates that, under

Plaintiff’s interpretation of the law, Defendants have already incurred an obligation to

disclose information.

Defendants make three further challenges to Plaintiff’s informational standing,

none of which are meritorious. First, Defendants contend that Plaintiff lacks standing

because its informational injury is merely a “generalized grievance,” and therefore

insufficient to confer standing. Am. Opp’n Mem., at 15 (citing Judicial Watch, Inc. v. FEC,

180 F.3d 277, 278 (D.C. Cir. 1999)). Plainly, the E-Government Act entitles the public

generally to the disclosure of Privacy Impact Assessments, but that does not mean that the

informational injury in this case is not particular to Plaintiff. As already noted, Plaintiff is

a public-interest organization that focuses on privacy issues, and uses information gleaned

from the government to educate the public regarding privacy, and to petition the

government regarding privacy law. See supra at [•]. Accordingly, the informational harm

in this case, as it relates to Plaintiff, is “concrete and particularized.” Moreover, the reality

of statutes that confer informational standing is that they are often not targeted at a

20
particular class of individuals, but rather provide for disclosure to the public writ large.

See, e.g., Friends of Animals, 824 F.3d at 1041 (finding that public interest environmental

organization had standing under statutory provision that required the Department of the

Interior to publish certain information in the Federal Register). Even putting aside the

particularized nature of the informational harm alleged in this action, however, the fact that

a substantial percentage of the public is subject to the same harm does not automatically

render that harm inactionable. As the Supreme Court observed in Akins: “Often the fact

that an interest is abstract and the fact that it is widely shared go hand in hand. But their

association is not invariable, and where a harm is concrete, though widely shared, the Court

has found ‘injury in fact.’” FEC v. Akins, 524 U.S. 11, 24 (1998). The Court went on to

hold, in language that is particularly apt under the circumstances, that “the informational

injury at issue . . . , directly related to voting, the most basic of political rights, is sufficiently

concrete and specific . . . .” Id. at 24–25.

Defendants next focus on the fact that the information sought does not yet exist in

the format in which it needs to be disclosed (i.e., as a Privacy Impact Assessment). Am.

Opp’n Mem., at 17. In this vein, they claim that Friends of Animals stands for the

proposition that the government cannot be required to create information. The Court

disagrees with this interpretation of Friends of Animals, and moreover, Defendants’ view

of the law is not evident in the controlling Supreme Court and D.C. Circuit precedents. As

already detailed, the court in Friends of Animals looked solely to the statutory text to

determine whether an obligation to disclose had been incurred. No significance was placed

by the D.C. Circuit on the fact that, if there were such an obligation, the federal government

would potentially be required to “create” the material to be disclosed (in that case, either a

21
proposed regulation, or an evaluative report). Furthermore, Friends of Animals cited two

cases, one by the D.C. Circuit and the other by the Supreme Court, as standing for the

proposition that plaintiffs have informational standing to sue under “statutory provisions

that guarantee[] a right to receive information in a particular form.” Friends of Animals,

828 F.3d at 994 (emphasis added; citing Zivotofsky ex rel. Ari Z. v. Sec’y of State, 444 F.3d

614, 615–19 (D.C. Cir. 2006), and Havens Realty Corp. v. Coleman, 455 U.S. 363, 373–

75 (1982)). Furthermore, in Public Citizen, the Supreme Court found that plaintiff had

informational standing to sue under FACA, and thereby seek the disclosure of an advisory

committee charter and other materials which FACA requires advisory committees to create

and make public. Presumably those materials did not exist, given defendants’ position that

the committee was not subject to FACA, and in any event, the Court made no distinction

on this basis. Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 447 (1989). And in Akins,

the information sought was not in defendants’ possession, as the entire lawsuit was

premised on requiring defendant to take enforcement action to obtain that information. 524

U.S. at 26. Ultimately, the distinction between information that already exists, and

information that needs to be “created,” if not specious, strikes the Court as an unworkable

legal standard. Information does not exist is some ideal form. When the government

discloses information, it must always first be culled, organized, redacted, reviewed, and

produced. Sometimes the product of that process, as under the Freedom of Information

Act, is a production of documents, perhaps with an attendant privilege log. See, e.g.,

Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 146 (D.C. Cir. 2006)

(explaining the purpose of a Vaughn index). Here, Congress has mandated that disclosure

take the form of a Privacy Impact Assessment, and that is what Plaintiff has standing to

22
seek, regardless of whether an agency is ultimately required to create the report.

Lastly, Defendants contend that Plaintiff lacks informational standing because

Section 208 only requires the publication of a Privacy Impact Statement if doing so is

“practicable.” Am. Opp’n Mem., at 17 n.2. As an initial matter, Defendants have at no point

asserted that it would be impracticable to create and publish a Privacy Impact Assessment;

rather, they have rested principally on their contention that they are not required to create

or disclose one because Plaintiff either lacks standing, or because the E-Government Act

and APA only apply to federal agencies, which are not implicated by the collection of voter

roll information. Accordingly, whatever limits the word “practicable” imposes on the

disclosure obligations of Section 208, they are not applicable in this case, and therefore do

not affect Plaintiff’s standing to bring this lawsuit. As a more general matter, however, the

Court disagrees with Defendants’ view that merely because a right to information is in

some way qualified, a plaintiff lacks informational standing to seek vindication of that

right. For this proposition, Defendants again cite Friends of Animals, contending that the

D.C. Circuit held that “informational standing only exists if [the] statute ‘guaranteed a right

to receive information in a particular form . . . .’” Id. (citing Friends of Animals, 828 F.3d

at 994). That is not what the D.C. Circuit held; rather that language was merely used to

describe two other cases, Haven and Zivotofsky, in which the Supreme Court and D.C.

Circuit determined that plaintiffs had informational standing. See supra at [•]. One only

need to look toward the Freedom of Information Act, under which litigants undoubtedly

have informational standing despite the fact that the Act in no way provides an unqualified

right to information, given its numerous statutory exemptions. See Zivotofsky, 444 F.3d at

618. Moreover, the available guidance indicates that the qualifier “practicable” was meant

23
to function similarly to the exemptions under the Freedom of Information Act, and is

therefore not purely discretionary. See M-03-22, OMB Guidance for Implementing the

Privacy Provisions of the E-Government Act of 2002 (Sept. 26, 2003) (“Agencies may

determine to not make the PIA document or summary publicly available to the extent that

publication would raise security concerns, reveal classified (i.e., national security)

information or sensitive information (e.g., potentially damaging to a national interest, law

enforcement effort or competitive business interest) contained in an assessment. Such

information shall be protected and handled consistent with the Freedom of Information Act

. . . .” (footnote omitted; emphasis added)). Accordingly, for all of the foregoing reasons,

the Court concludes that Plaintiff has satisfied its burden at this stage regarding its

informational standing to seek the disclosure of a Privacy Impact Assessment pursuant to

Section 208 of the E-Government Act.

Moreover, because the Court assumes the merits of Plaintiff’s claims for standing

purposes, the Court also finds that Plaintiff has informational standing with respect to its

FACA claim, which likewise seeks the disclosure of a Privacy Impact Assessment. Judicial

Watch, Inc. v. U.S. Dep’t of Commerce, 583 F.3d 871, 873 (D.C. Cir. 2009) (“Here the

injury requirement is obviously met. In the context of a FACA claim, an agency’s refusal

to disclose information that the act requires be revealed constitutes a sufficient injury.)

3. Organizational Standing Under PETA

For similar reasons to those enumerated above with respect to informational

standing, the Court also finds that Plaintiff has organizational standing under PETA v.

USDA, 797 F.3d 1087 (D.C. Cir. 2015). In this circuit, an organization may establish

standing if it has “suffered a concrete and demonstrable injury to its activities, mindful that,

24
under our precedent, a mere setback to . . . abstract social interests is not sufficient.” Id. at

1093 (internal quotation marks and alterations omitted) (citing Am. Legal Found. v. FCC,

808 F.2d 84, 92 (D.C. Cir. 1987) (“The organization must allege that discrete programmatic

concerns are being directly and adversely affected by the defendant’s actions.”)). “Making

this determination is a two-part inquiry—we ask, first, whether the agency’s action or

omission to act injured the organization’s interest and, second, whether the organization

used its resources to counteract that harm.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d

905, 919 (D.C. Cir. 2015) (internal quotation marks and alterations omitted). In PETA, the

D.C. Circuit found that an animal rights organization had suffered a “denial of access to

bird-related . . . information including, in particular, investigatory information, and a means

by which to seek redress for bird abuse . . . .” PETA, 797 F.3d at 1095. This constituted a

“cognizable injury sufficient to support standing” because the agency’s failure to comply

with applicable regulations had impaired PETA’s ability to bring “violations to the

attention of the agency charged with preventing avian cruelty and [to] continue to educate

the public.” Id.

Under the circumstances of this case, Plaintiff satisfies the requirements for

organizational standing under PETA. Plaintiff has a long-standing mission to educate the

public regarding privacy rights, and engages in this process by obtaining information from

the government. Pl.’s Reply Mem. at 17 (“EPIC’s mission includes, in particular, educating

the public about the government’s record on voter privacy and promoting safeguards for

personal voter data.”). Indeed, Plaintiff has filed Freedom of Information Act requests in

this jurisdiction seeking the disclosure of the same type of information, Privacy Impact

Assessments, that it claims has been denied in this case. See, e.g., Elec. Privacy Info. Ctr.

25
v. DEA, 208 F. Supp. 3d 108, 110 (D.D.C. 2016). Furthermore, Plaintiff’s programmatic

activities—educating the public regarding privacy matters—have been impaired by

Defendants’ alleged failure to comply with Section 208 of the E-Government Act, since

those activities routinely rely upon access to information from the federal government. See

Hr’g Tr. at 20:8–16. This injury has required Plaintiff to expend resources by, at minimum,

seeking records from the Commission and other federal entities concerning the collection

of voter data. See Decl. of Eleni Kyriakides, ECF No. 39-1, ¶ 6. Accordingly, Plaintiff has

organizational standing under the two-part test sanctioned by the D.C. Circuit in PETA.

B. Likelihood of Success on the Merits

Having assured itself of Plaintiff’s standing to bring this lawsuit, the Court turns to

assess the familiar factors for determining whether a litigant is entitled to preliminary

injunctive relief; in this case, a temporary restraining order and preliminary injunction. The

first, and perhaps most important factor, is Plaintiff’s likelihood of success on the merits.

The E-Government Act does not provide for a private cause of action, and

accordingly, Plaintiff has sought judicial review pursuant to Section 702 of the APA. See

Greenspan v. Admin. Office of the United States Courts, No. 14CV2396 JTM, 2014 WL

6847460, at *8 (N.D. Cal. Dec. 4, 2014). Section 704 of the APA, in turn, limits judicial

review to “final agency action for which there is no other adequate remedy . . . .” As

relevant here, the reviewing court may “compel agency action unlawfully withheld or

unreasonably delayed.” 5 U.S.C. § 706(1). The parties principally disagree over whether

any “agency” is implicated in this case such that there could be an “agency action” subject

to this Court’s review. See Pl.’s Am. Mem., at 19–30; Am. Opp’n Mem., at 20–33.

“Agency” is broadly defined by the APA to include “each authority of the

26
Government of the United States, whether or not it is within or subject to review by another

agency . . . .” 5 U.S.C. § 551(1). The statute goes on to exclude certain components of the

federal government, including Congress and the federal courts, but does not by its express

terms exclude the President, or the Executive Office of the President (“EOP”). Id.

Nonetheless, the Supreme Court has concluded that the President is exempted from the

reach of the APA, Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992), and the D.C.

Circuit has established a test for determining whether certain bodies within the Executive

Office of the President are sufficiently close to the President as to also be excluded from

APA review, see Armstrong v. Exec. Office of the President, 90 F.3d 553, 558 (D.C. Cir.

1996) (citing Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993)). In determining whether the

Commission is an “agency,” or merely an advisory body to the President that is exempted

from APA review, relevant considerations include “whether the entity exercises substantial

independent authority,” “whether the entity’s sole function is to advise and assist the

President,” “how close operationally the group is to the President,” “whether it has a self-

contained structure,” and “the nature of its delegated authority.” Citizens for Responsibility

& Ethics in Washington v. Office of Admin., 566 F.3d 219, 222 (D.C. Cir. 2009) (“CREW”)

(internal quotation marks omitted). The most important consideration appears to be

whether the “entity in question wielded substantial authority independently of the

President.” Id.

The record presently before the Court is insufficient to demonstrate that the

Commission is an “agency” for purposes of the APA. First, the Executive Order indicates

that the Commission is purely advisory in nature, and that it shall disband shortly after it

delivers a report to the President. No independent authority is imbued upon the

27
Commission by the Executive Order, and there is no evidence that it has exercised any

independent authority that is unrelated to its advisory mission. Defendants’ request for

information is just that—a request—and there is no evidence that they have sought to turn

the request into a demand, or to enforce the request by any means. Furthermore, the request

for voter roll information, according to Defendants, is ancillary to the Commission’s stated

purpose of producing an advisory report for the President regarding voting processes in

federal elections. The Executive Order does provide that other federal agencies “shall

endeavor to cooperate with the Commission,” and that the GSA shall “provide the

Commission with such administrative services, funds, facilities, staff, equipment, and other

support services as may be necessary to carry out its mission.” Exec. Order § 7(a).

Nonetheless, Defendants have represented that the GSA’s role is currently expected to be

limited to specific “administrative support like arranging travel for the members” of the

Commission, and that no other federal agencies are “cooperating” with the Commission.

Hr’g Tr. at 27:25–28:6; 30:10–13. Finally, although Commissioner Christy McCormick of

the Election Assistance Commission is a member of the Commission, there is currently no

record evidence that she was substantially involved in the decision to collect voter

information, or that her involvement in some fashion implicated the Election Assistance

Commission, which is a federal agency. Hr’g Tr. 28:24–30:4; cf. Judicial Watch, Inc. v.

Nat’l Energy Policy Dev. Grp., 219 F. Supp. 2d 20, 39–40 (D.D.C. 2002) (citing Ryan v.

Dep’t of Justice, 617 F.2d 781 (D.C. Cir. 1980)).

This would have ended the inquiry, but for the revelation during the course of these

proceedings that the SAFE system, which the Commission had intended for states to use

to transmit voter roll information, is operated by a component of the Department of

28
Defense. Moreover, the only voter roll information transferred to date resided on the SAFE

system, and consequently was stored on a computer system operated by the Department of

Defense. Given these factual developments, the Department of Defense—a federal

agency—was added as a defendant to this lawsuit. See Am. Compl., ECF No. 21, ¶¶ 37–

42. Shortly after that occurred, however, Defendants changed gears, and represented that

“[i]n order not to impact the ability of other customers to use the [SAFE] site, the

Commission has decided to use alternative means for transmitting the requested data.” ECF

No. 24, at 1. In lieu of the SAFE system, Defendants had the Director of White House

Information Technology (“DWHIT”) repurpose “an existing system that regularly accepts

personally identifiable information through a secure, encrypted computer application

within the White House Information Technology enterprise.” Id. Furthermore, Defendants

have represented that the data received from the State of Arkansas via the SAFE system

has been deleted, “without ever having been accessed by the Commission.” Herndon Decl.

¶ 7. Accordingly, while the legal dispute with respect to the use of the SAFE system by

Defendants to collect at least some voter roll information may not be moot—data was in

fact collected before a Privacy Impact Assessment was conducted pursuant to the E-

Government Act—that potential legal violation does not appear to be a basis for the

prospective injunctive relief sought by Plaintiff’s amended motion for injunctive relief;

namely, the prevention of the further collection of voter roll information by the

Commission. In any event, Plaintiff has not pursued the conduct of the Department of

Defense as a basis for injunctive relief.

Given the change of factual circumstances, the question now becomes whether any

of the entities that will be involved in administering the “repurposed” White House system

29
are “agencies” for purposes of APA review. One candidate is the DWHIT. According to the

Presidential Memorandum establishing this position, the “Director of White House

Information Technology, on behalf of the President, shall have the primary authority to

establish and coordinate the necessary policies and procedures for operating and

maintaining the information resources and information systems provided to the President,

Vice President, and the EOP.” Mem. on Establishing the Director of White House

Information Technology and the Executive Committee for Presidential Information

Technology (“DWHIT Mem.”), § 1, available at https://www.gpo.gov/fdsys/pkg/DCPD-

201500185/pdf/DCPD-201500185.pdf (last accessed July 16, 2017). The DWHIT is part

of the White House Office, id. § 2(a)(ii), a component of the EOP “whose members assist

the President with those tasks incidental to the office.” Alexander v. F.B.I., 691 F. Supp. 2d

182, 186 (D.D.C. 2010), aff’d, 456 F. App’x 1 (D.C. Cir. 2011); see also Herndon Decl. ¶

1. According to the Memorandum, the DWHIT “shall ensure the effective use of

information resources and information systems provided to the President, Vice President,

and EOP in order to improve mission performance, and shall have the appropriate authority

to promulgate all necessary procedures and rules governing these resources and systems.”

DWHIT Mem., § 2(c). The DWHIT is also responsible for providing “policy coordination

and guidance” for a group of other entities that provide information technology services to

the President, Vice President, and the EOP, known as the “Presidential Information

Technology Community.” Id. § 2(a), (c). Furthermore, the DWHIT may “advise and confer

with appropriate executive departments and agencies, individuals, and other entities as

necessary to perform the Director’s duties under this memorandum.” Id. § 2(d).

Taken as a whole, the responsibilities of the DWHIT based on the present record

30
amount to providing operational and administrative support services for information

technology used by the President, Vice President, and close staff. Furthermore, to the extent

there is coordination with other federal agencies, the purpose of that coordination is

likewise to ensure the sufficiency and quality of information services provided to the

President, Vice President, and their close staff. Given the nature of the DWHIT’s

responsibilities and its proximity to the President and Vice President, it is not an agency

for the reasons specified by the D.C. Circuit in CREW with respect to the Office of

Administration (“OA”). In that case, the D.C. Circuit held that the OA was not an “agency”

under FOIA 5 because “nothing in the record indicate[d] that OA performs or is authorized

to perform tasks other than operational and administrative support for the President and his

staff . . . .” CREW, 566 F.3d at 224. Relying on its prior holding in Sweetland, the court

held that where an entity within the EOP, like the DWHIT, provides to the President and

his staff “only operational and administrative support . . . it lacks the substantial

5
Plaintiff argues that CREW and similar cases by the D.C. Circuit interpreting whether an
entity is an agency for purposes of FOIA are not applicable to determining whether an
entity is an agency for purposes of the APA. See Pl.’s Reply Mem. at 2. The Court
disagrees. The D.C. Circuit established the “substantial independent authority” test in
Soucie, a case that was brought under FOIA, but at a time when the definition of “agency”
for FOIA purposes mirrored the APA definition. In that case, the D.C. Circuit held that
“the APA apparently confers agency status on any administrative unit with substantial
independent authority in the exercise of specific functions.” Soucie v. David, 448 F.2d
1067, 1073 (D.C. Cir. 1971) (emphasis added); Meyer, 981 F.2d at 1292 n.1 (“[b]efore the
1974 Amendments, FOIA simply had adopted the APA’s definition of agency”); see also
Dong v. Smithsonian Inst., 125 F.3d 877, 881 (D.C. Cir. 1997) (“[o]ur cases have followed
the same approach, requiring that an entity exercise substantial independent authority
before it can be considered an agency for § 551(1) purposes”—that is, the section that
defines the term “agency” for purposes of the APA). The CREW court applied the
“substantial independent authority” test, and the Court sees no basis to hold that the
reasoning of CREW is not dispositive of DWHIT’s agency status in this matter.

31
independent authority we have required to find an agency covered by FOIA . . . .” Id. at

223 (citing Sweetland v. Walters, 60 F.3d 852, 854 (D.C. Cir. 1995)). This conclusion was

unchanged by the fact that the OA, like the DWHIT here, provides support for other federal

agencies to the extent they “work at the White House complex in support of the President

and his staff.” Id. at 224. Put differently, the fact that the DWHIT coordinates the

information technology support provided by other agencies for the President, Vice

President, and their close staff, does not change the ultimate conclusion that the DWHIT is

not “authorized to perform tasks other than operational and administrative support for the

President and his staff,” which means that the DWHIT “lacks substantial independent

authority and is therefore not an agency . . . .” Id. However, to the extent that DWHIT’s

responsibilities expand either formally or organically, as a result of its newfound

responsibilities in assisting the Commission, this determination may need to be revisited in

the factual context of this case.

The other candidates for “agency action” proposed by Plaintiff fare no better. The

Executive Committee for Presidential Information Technology and the U.S. Digital

Service, even if they were agencies, “will have no role in th[e] data collection process.”

Herndon Decl. ¶ 6. According to Defendants, apart from the DWHIT, the only individuals

who will be involved in the collection of voter roll information are “a limited number of .

. . technical staff from the White House Office of Administration.” Id. Finally, Plaintiff

contends that the entire EOP is a “parent agency,” and that as a result, the activities of its

components, including those of the DWHIT and the Commission, are subject to APA

review. However, this view of the EOP has been expressly rejected by the D.C. Circuit and

is at odds with the practical reality that the D.C. Circuit has consistently analyzed the

32
agency status of EOP components on a component-by-component basis. United States v.

Espy, 145 F.3d 1369, 1373 (D.C. Cir. 1998) (“it has never been thought that the whole

Executive Office of the President could be considered a discrete agency under FOIA”).

Accordingly, at the present time and based on the record before the Court, it appears that

there is no “agency,” as that term is understood for purposes of the APA, that is involved

in the collection of voter roll information on behalf of the Commission. Because there is

no apparent agency involvement at this time, the Court concludes that APA review is

presently unavailable in connection with the collection of voter roll information by the

Commission.

The last remaining avenue of potential legal redress is pursuant to FACA. Plaintiff

relies on Section 10(b) of FACA as a means to seek the disclosure of a Privacy Impact

Assessment, as required under certain circumstances by the E-Government Act. See Am.

Compl, ECF No. 33, ¶¶ 73–74. That section provides that an advisory committee subject

to FACA must make publicly available, unless an exception applies under FOIA, “the

records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda,

or other documents which were made available to or prepared for or by [the] advisory

committee . . . .” 5 U.S.C. app. 2 § 10(b). The flaw with this final approach, however, is

that FACA itself does not require Defendants to produce a Privacy Impact Assessment;

only the E-Government Act so mandates, and as concluded above, the Court is not

presently empowered to exert judicial review pursuant to the APA with respect to Plaintiff’s

claims under the E-Government Act, nor can judicial review be sought pursuant to the E-

Government Act itself, since it does not provide for a private cause of action. Consequently,

for all of the foregoing reasons, none of Plaintiff’s avenues of potential legal redress appear

33
to be viable at the present time, and Plaintiff has not demonstrated a likelihood of success

on the merits.

C. Irreparable Harm, Balance of the Equities, and the Public Interest

Given that Plaintiff is essentially limited to pursuing an informational injury, many

of its theories of irreparable harm, predicated as they are on injuries to the private interests

of its advisory board members, have been rendered moot. See Pl.’s Am. Mem., at 34–40.

Nonetheless, the non-disclosure of information to which a plaintiff is entitled, under certain

circumstances itself constitutes an irreparable harm; specifically, where the information is

highly relevant to an ongoing and highly public matter. See, e.g., Elec. Privacy Info. Ctr. v.

Dep’t of Justice, 416 F. Supp. 2d 30, 41 (D.D.C. 2006) (“EPIC will also be precluded,

absent a preliminary injunction, from obtaining in a timely fashion information vital to the

current and ongoing debate surrounding the legality of the Administration’s warrantless

surveillance program”); see also Washington Post v. Dep’t of Homeland Sec., 459 F. Supp.

2d 61, 75 (D.D.C. 2006) (“Because the urgency with which the plaintiff makes its FOIA

request is predicated on a matter of current national debate, due to the impending election,

a likelihood for irreparable harm exists if the plaintiff’s FOIA request does not receive

expedited treatment.”). Indeed, the D.C. Circuit has held that “stale information is of little

value . . . [,]” Payne Enters, Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988), and

that the harm in delaying disclosure is not necessarily redressed even if the information is

provided at some later date, see Byrd v. EPA, 174 F.3d 239, 244 (D.C. Cir. 1999) (“Byrd’s

injury, however, resulted from EPA’s failure to furnish him with the documents until long

after they would have been of any use to him.”). Here, however, the Court concludes that

Plaintiff is not presently entitled to the information that it seeks, and accordingly, Plaintiff

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cannot show that it has suffered an irreparable informational injury. To hold otherwise

would mean that whenever a statute provides for potential disclosure, a party claiming

entitlement to that information in the midst of a substantial public debate would be entitled

to a finding of irreparable informational injury, which cannot be so. See, e.g., Elec. Privacy

Info. Ctr. v. Dep’t of Justice, 15 F. Supp. 3d 32, 45 (D.D.C. 2014) (“surely EPIC’s own

subjective view of what qualifies as ‘timely’ processing is not, and cannot be, the standard

that governs this Court’s evaluation of irreparable harm”).

Finally, the equitable and public interest factors are in equipoise. As the Court

recently held in a related matter, “[p]lainly, as an equitable and public interest matter, more

disclosure, more promptly, is better than less disclosure, less promptly. But this must be

balanced against the interest of advisory committees to engage in their work . . . .” Lawyers’

Comm. for Civil Rights Under Law v. Presidential Advisory Comm’n on Election Integrity,

No. CV 17-1354 (CKK), 2017 WL 3028832, at *10 (D.D.C. July 18, 2017). Here, the

disclosure of a Privacy Impact Assessment may very well be in the equitable and public

interest, but creating a right to such disclosure out of whole cloth, and thereby imposing an

informational burden on the Commission where none has been mandated by Congress or

any other source of law, is not.

IV. CONCLUSION

For all of the foregoing reasons, Plaintiff’s [35] Motion for a Temporary

Restraining Order and Preliminary Injunction is DENIED WITHOUT PREJUDICE.

An appropriate Order accompanies this Memorandum Opinion.

/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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