council must all be placed receiving a ready good morning your honor is made please to court my name is ryan will be and i represent the appellant cause of action institute this case presents the question of whether internet browsing history records are subject to disc are subject agency can control and therefore disclosable under the freedom of information act as this court explained in traditional watch the secret service for factor bergen test is the default standard for analyzing agency control in the usual that's that's correct your honor we're not back down by the district court's conclusion that those three factors could in your favor that that is true not at all sure that the do the reason i'm raising that you may wish to tell us why this is would so there you're right your honor that there is some ambiguity as to how the browser is or on our cell phone devices on mobile devices i think it is clear though with respect to desktop  but i think it's right to assume that within the retention period an individual employee could have the authority to manually delete a record but i'm not sure that that's dispositive too to intent to retain or relinquish control would certainly seem to we not when you're talking about a record i think your honor that isn't going to be subject to something like the federal records act so this circuit has made clear in your own national affairs and consumer federation of america that records management rules including the disposition of a record are not going to be dispositive to two to the control question of whether a particular record is subject to the for his definition of an agency record and what would be subject to disclosure is broader than the definition of a federal record in that respect so long as the record is exists at the time a request is filed then it could be subject it could be subjected to disclosure and again it's true that the agency has given individual employees within the retention period it seems the authority to delete individual browsing history entries but that's within the agency's authority to grant that discretion and i'm sure that that destroys the overall intent there's there's no reason to that the agency couldn't have decided to deprive individual employees of their  ability to deal with these records if and furthermore there's no there's nothing in the record regarding whether or not the particular internet browsing history records that issue and the officials identified and cause of action institute's request have in fact attempted to really to delete delete these files neither of the agencies made clear that they applied the control test to to internet browsing history records that they actually review and we can stop the timer running if you have been able to do that the agency could certainly make use of that in a disciplinary or even criminal investigation but that would not be used within the terms of the a record of the agency that's the question here is we're trying to determine whether this is a record of the agency and if they only use the records going to make the agency could ever make it would be evidentiary used in a proceeding outside the ages your normal business disciplinary i think i think it could be it's going to be a fact this ific analysis i think part of the difference with that example your honor is that all of the other factors would cut against control and and you would also have a question as to whether it has been obtained under the st problem with tax analysts here i mean the government didn't really raise any dispute as to whether the st prong attack the pertains to be the issue of discovery in that as both appellant and amicus of pointed out there's nothing in the record about how the actual individual employees here the officials identified in cause of actions request use their internet browsing history records that's completely absent that sort of evidence from any of the declarations that were offered by the government why and mr moti why is that the relevant in korea as opposed to how the agency itself uses this record well agencies and i believe it was judge can help put it this way in his opinion in c e i versus oh it's t p an agency acts through its employees and i don't believe that there's any case well and for that to suggest that we ought to distinguish between records creator and others with in the agency for the purposes of addressing actual use under the rd book offender i mean browser history there i think in some ways a bit unusual type of record if they even are a record because a person makes internet searches for whatever purpose  you know to find restaurant reservations to research something they're working on and the record itself is created by the browser or by the agency settings of the browser right it's not creation of a record in the way as a writing a memo or something like that i mean do you think that makes a difference here well i think it does particularly for whether or not your own national fairs in the fatality of the circumstances test ought to be the appropriate one no course we argue that which is the default in this circuit is most appropriate but because the record is created automatically by an agency system the internet browser on and on any from our cases that i mean my life was when i had no idea what this even is but i think some of us here can remember the days in which you got a note that told you that you got a phone call from a particular number and you didn't return that call and that that's not use of personal or business use for business purposes and it is in some physical sense a record because it's a document a document something that happened in the course of business but we still don't consider that to be an agency record for purposes of oil and it's hard for me  house that's not an agency record how a mere history that a person puts that a browser puts together of sites that have been visited as to which there's no indication that the agency quite as he pushes any use to that whatsoever nonetheless as a other considerations but on that one dimension what's the comparison that helps you well i mean i think again you just have to look and we address this in our brief at the substance of what the telephone slip would be conveying as compared to browsing intrigue record they're able to actually view the substance of the content that an individual agency employees was doing presumably for work related purposes and that's very different than just a telephone number of course you could just tell you the phone number i mean it depends on where that's going to be fact specific it's going to depend on what the secretary or personal assistant was reporting on the message quit you some of us do and they said go at that i never saw one that didn't have them or information and that's the way things used to be before there was such a thing as e mail and texting in computers but back in the back in the last millennium something more than just being located in the same office that that th record doesn't mean anything if we take your position that just being there is enough  so that's what the what the with the government has argued and that is that it's but that's no different i think than in most agencies with respect to the ability of the staff for example to accept the concept of a computer not all agencies have a magic button that allows them to access something like microsoft outlook e mail records which i think we would all acknowledge are well established his agency records some agencies for example the internal revenue service  least previously had to physically poppy the hard drive of the computer in order to search e mail in response to a foyer request whether they change that practice i'm not sure but that would seem  to your line of thinking your honor cuts against integration but i'm not sure that that makes sense as an outcome so long as something is is on the agency computer and it's something that could be accessed by other computer integrated into the agency's records just because it's on a computer and so therefore you can go find it somewhere i mean is that is that sort of the implication of your argument would there be anything on a an agency employees computer that would not be an agency record well i think if you have something on the on the local drive say on your desktop for example that  distinction i mean i think again it would be it would be fact specific and moreover even if that were enough with respect to integration all the other aspects of the st the factors for it were in the circumstances all of the other considerations about the creation possession control and use of this record that's located you know say it's a birthday card that you typed out and saved on your hard drive all those other aspects are going to come into play as well as the all important consideration that you purposely created that record for personal purposes in a way that adds that sort of aspect is absent from internet browsing history records and moreover looking at that kissinger for example and also c e i versus office of science and technology policy the idea that you the employee have a superior claim of right over that record to call it your property even though it's being used in an minimus way by expending agency resources and stuff that sort of consideration is completely absent from internet browsing history records and employ your an official can't claim his internet browsing history record as kids and walk out the door as secretary kissinger did with his notes in kissinger that so i think those sorts of considerations would then this is the only reason the employee can't do that because the agency has a practice of capturing those browser histories well that that made me that want to be a big part of your argument retention period from the default they obviously understood that there was some importance to internet browsing history records to keep them within the agency at least for some period of time  otherwise they wouldn't have done anything they would have just kept the automatic retention settings the ones that were sent by the manufacturers instead they took the proactive step of expanding more than doubling those retention periods  mulvihill give me a bit of time for a bottle the letter from the government now mr fan good morning your honor may please record down a fan on behalf of the united states i just wanted to pick up one discussion that they had about the noted are the sort of creation possession and use of a record that this court is often found significant as you know there are national affairs that documents there were created solely as a personal convenience they were kept sometimes but often thrown away and they weren't really used in the course of any page and see decision making here or the internet browsing histories are created solely as a technological byproduct of using the internet if you're using the internet at home on your web browser you're going to create a web browsing history if you use it at work you create a web browsing history in the same way there routinely deleted and in fact  there are deletion periods in which they have to be deleted after a certain amount of time with respect to browsing history and finally in terms of use browsing histories are far less useful than the telephone  if you you could go your entire career within a government agency without opening up your browsing history back in the day if you didn't have telephone slips i mean you couldn't really run an agency without them because you wouldn't know so you know who called when they had called how to get them you know call back and you would be sitting at your phone all day essentially waiting for the next call the coming so along each of those metrics are this case really have a question do you start out your brief by saying because officials in a technical sense cause the creation of browsing history simply by using the browsers and then go on to the nd aspect of the tech analyst framework and i'm just wondering why it's self evident under the st prong of the tax analysts framework for a couple of reasons i mean you might well say look we had an easy argument of the nd prong and that's why we focus on that i understand that as a matter of argumentation but in terms of what the the conceptual reality of what we're dealing with for her because of our analysis is it right that and browsing history a couple of questions st is a browsing history a record that always exists as opposed to one that's created upon request in which event that's the creation of a record rather than the existence of a record and boy it doesn't cover creation of new records it covers existence of preexisting records and the nd somewhat related question is is the browsing history something that exists i don't know you can find it on a computer on a government computer but there's a browsing history exist in the government or is it something that the browser company has and then that that and then that particular can then just commission when they want to so it's like an off site you know something that's kept somewhere else can be brought into the government's purview upon request i think the best way to think about this is you remember there are the best analogy for this if you think back in the day before there were computers and you went to the library and you had to get one of those index cards with a short stubby pencils and write down a reference called numbers and you like went through the catalog what's best but what's said are there by can you kind of scrawl down your numbers best that that's way to think about this i mean this is kind of you having some type of notation that says hey i went to google that analogy you're the one who's writing down the things that you're going to ask to be found in the stacks right and that's but it would be different if you just said to a librarian here's the five books i want and then you ask the librarian  what are the five books i want i wanted and then the librarian he says well i wrote him down here's what here's what i wrote down those are going to do other things you know that's bad is that is entirely right i mean that the browser histories do exist i guess maybe taking your questions more directly the browser histories do exist on government devices and on government computers that's sort of the way they function they don't latest off site and some ether in the cloud not on the  somewhere which i don't know how to treat that but yeah and that's i can answer it has in terms of how they're created you're right i mean that your computers create these and they create these to make themselves more because most government offices you know your ability to change settings is highly constrained but on a lot of devices you could turn off your browsing history you could have no present history could you know function perfectly allow even without one so in that sense it's there's some very small element of choice and you know we didn't argue below that these weren't created or obtained in a technical sense and we didn't press that argument which is why we haven't done so here but i certainly understand the distinction where you have documents that somehow sort of just as you might think about a peer onto your computer i mean computers kind of run all sorts of things on the background might create files or create different versions of things that you don't even know about and you have no choice but i think that only underscores why the agencies aren't really exercising and eating three of control or the relevan was interested in this argument about whether the district court should have dismissed for lack of subject matter jurisdiction here and going through the cases i mean there seems to be some tension in how we talk about this you know these are agency records as part of the jurisdictional inquiry or not because it's there are cases that suggest it goes to jurisdiction but then of course we have that footnote in text analysts which say well you know the government has the burden of showing that it is not an agency records i'm wondering how should we think about that issue how should we reconcile those tensions yeah think that's not a foyer request at all like what you've provided doesn't sound like a fight request that sounds like you want the agency to go subpoena some private company but i don't think it matters here and i don't think the court needs to cite because ultimately if it's not an conceptually it could certainly make a difference over the run of cases and if it is a jurisdictional inquiry then it would be the case that the plaintiffs hesse to demonstrate that it's an agency record right because you could have as the obligation of demonstrating i want the documents of the state department of education and you file for your request with the u s department of education we might say that well that's not a flight quest at all because you haven't even asked an agency for something that would be an agency record that they attempted to sue on the basis that we might say well that there's no foyer request that could be the basis for jurisdiction and in any event i like i said i i think this case if we step back and specific same wavelength whether here's the actual or not would go to whether we have to notice it on our own when it so for example if you had a case in which the government for whatever reason didn't make an argument that the requested matter didn't qualify as an age the record but then just went right straight to the exemptions and said don't worry about it because if it's clearly been an exemption then if it's goes to jurisdiction then we on appeal would have to actually address whether it's an agency record or not we couldn't just go to the exemption question actions usually merits question out of years and frankly isn't it know that and that's entirely right and i guess i'm just assuming that the government in most of those cases would make some type of argument there that there is no cause of action and prospect totally collapses with think i disagree that that whether it is a jurisdictional inquiry is only important in the outlandish cases because if something is jurisdictional it's important in every case right so so this this argument that you're making that you know well of course that would only matter in the outlandish case i don't i don't i don't i don't understand that argument i understand you may not want to reach that question in this case  t i guess i don't understand like the government's position to say you know jurisdiction only matters in outlandish cases yeah and i think some of this has to do with functionally how  foyer request is processed i mean you're going to look at the sort of face of the foyer request and if it doesn't even sound like a real foyer requests for some real things that are agency records then the agency it is well within its rights to say look you know you know that this isn't anything we can do anything about this isn't request that we can provide records or you can do a search on and if they sue then we would provide you know driving histories are depends necessarily on the sort of declarations about what the browsers do and how they function and in that sense it collapses in cases like this where there is no cause of action because there is no agency record for sure the agency and sort of that numerical sense i'm not sure whether those cases really  mentioned if you sent for your request to the state department of education under the federal freedom of information act and they said well we're not really an agency that would certainly the jurisdiction and that's what i mean when i just isn't subject to foil at all in which congress said otherwise exempted them altogether from foyer and you sent them for a request for agency records they could say well we're not one of the relevant agencies what's respect to argument because if it isn't sure if you admit that it's jurisdictional whether something is an agency or not and there are government entities that are not agencies within the meaning of foil then should have also be jurisdictional whether something is a record that that t erm goes together agency record it's not so if the agency component of it is jurisdictional why wouldn't the record component of it also be jurisdictional i mean we're we'd be happy if this court on the basis that there was no jurisdiction in district court you know the question of whether something is an agency tends to be a little bit more clean cut and then some of the questions of whether something is a record we think the question of whether there's a record in this case in particular happens to be fairly straightforward and decided based on national affairs but i see my time as a lapsed and i left there for their question jurisdictional as the question of an agency record if you look at kissinger which is where this three card aspect of your conviction is kind of spelled out you would have to add to that list the question of  record has been on lawfully withheld whether or not an exemption has been properly applied that would need to be jurisdictional d as well and if that were the case it would throw the whole of  r into into an entire mess because it would destroy like that you mentioned the footnote in tax analysts that an agency bears the burden of demonstrating that that it is  the records all of that would be thrown into disarray if we were dealing with twelve b one because the burden would be on a plaintiff's request or to demonstrate at the outset that not only  is the entity in receipt of a foyer request an agency for purposes a full and that it has control over the records but that a particular statutory exemption has or has not been a print properly applied and i don't think that makes much sense i think a lot of the confusion that has arisen and i'm not quite sure why the government in this case decided to move dismissed under twelve b one because i did there is not one single example in this circuit that i can think of a case dealing with the question of whether an entity is subject to the foyer whether records are agency records that's been decided  terms of subject matter jurisdiction it's always a marriage question a lot of it stems from just ambiguity in in the language of the foyer itself it uses the term jurisdiction but as the district court here and as the district court in cause of action versus internal revenue service which is an opinion i would recommend to the panel here to review for this question of jurisdiction it's used ambiguously and appellate position and the decision of the court below was that jurisdiction here really doesn't mean the power of the court to hear a wealthy to toyah claim but rather jurisdiction here speaks to delimit to the limits of the court's remedial power to provide a certain type of relief so if a record isn't an agency record or an entity isn't an agency the court can't order disclosure of anything