EPIC v. Commerce, No. 18 2711 EPIC PI Reply

Transcript

1 IN UNITED STATES THE DISTRICT COURT THE DISTRICT OF COLUMBIA FOR CENTER, PRIVACY INFORMATION ELECTRONIC Plaintiff, v. 2711 Civ. No. Action (DLF) 18 - COMMERCE, STATES UNITED OF DEPARTMENT et al . , . s Defendant REPLY IN SUPPORT OF PLAINTIFF’S FOR A MOTION PRELIMINARY INJUNCTION

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ... ... ... ii ... SUMMARY ... ... ... ... 1 ARGUMENT ... ... ... ... 2 I. EPIC is likely to succeed on the merits of its claims . ... ... 2 A. The Bureau cannot avoid its long overdue obligation to conduct and p ublish ... 2 privacy impact assessments. ... ... ... B. pled. ... - 10 EPIC’s claims under the APA are both ripe and well ... EPIC will suffer irreparab le harm absent an injunction . ... II. 13 III. T he equiti es and public interest weigh in favor of an injunction . ... ... 18 CONCLUSION ... ... ... ... 20 i

3 TABLE OF AUTHORITIES Cases AARP v. U.S. EEOC , ... ... ... 17 226 F. Supp. 3d 7 (D.D.C. 2016) Abbott Labs. v. Gardner , 7) ... 387 U.S. 136 (196 ... ... 10 ... Anglers Conservation Network v. Pritzker , ... 809 F.3d 664 (D.C. Cir. 2016) ... 11, 12 ... Biovail Corp. v. FDA , 448 F. Supp. 2d 153 (D.D.C. 2006) ... ... 17 ... , Damarcus S. v. D.C. ... 190 F. Supp. 3d 35 (D.D.C. 2016) ... 2 ... DIRECTV, Inc. v. FCC , 110 F.3d 816 (D.C. Cir. 1997) ... ... ... 2 Do e v. Bridgeport Police Dep't , 434 F. Supp. 2d 107 (D. Conn. 2006) ... ... ... 4 Friedman v. FAA , 11, 13 841 F.3d 537 (D.C. Cir. 2016) ... ... ... Gen. Elec. Co. v. EPA , 290 F.3d 377 (D.C. Cir. 2002) ... ... ... 11 Indep. Bankers Ass’n v. Heimann , 627 F.2d 486 (D.C. Cir. 1980) ... ... ... 17 Jacinto - Cast anon de Nolasco v. ICE , ... 319 F. Supp. 2d 491 (D.D.C. 2018) ... ... 18 Jones v. D.C. Redevelopment Land Agency , 9, 13, 15, 19 ... ... 499 F.2d 502 (D.C. Cir. 1974) ... Judicial Watch, Inc. v. DHS , 895 F.3d 770 (D.C. Cir. 2018) ... ... ... 14 League of Women Voters of the U.S. v. Newby , 838 F.3d 1 (D.C. Cir. 2016) ... ... ... .. 18 Lopez v. Davis , 11 531 U.S. 230 (2001) ... ... ... ... ii

4 Mylan Pharms., Inc. v. Shalala , ... ... 17 81 F. Supp. 2d 30 (D.D.C. 2000) ... N. Nat. Gas Co. v. Comm'r , ... ... ... ... 4 44 T.C. 74 (1965) Nat’l Ass’n of Home Builders v. U.S. Army Corps of Engineers , ... 417 F.3d ... 1272 (D.C. Cir. 2005) 10, 11 ... New York, et al. v. U.S. Dep’t of Commerce , No. 18 - 2921, 2019 WL 190285 (S.D.N.Y. Jan. 15, 2019) ... ... 16, 19 Norton v. Southern Utah Wilderness Alliance , 13 ... ... 542 U.S. 55 (2004) ... ... Open Communities Alliance v. Carson , 286 F. Supp. 3d 14 8 (D.D.C. 2017) ... ... ... 18 Open Top Sightseeing USA v. Mr. Sightseeing, LLC , 48 F. Supp. 3d 87 (D.D.C. 2014) ... ... ... 17 Payne Enters., Inc. v. United States , 14 837 F.2d 486 (D.C. Cir. 1988) ... ... ... Pub. Emps. For Envtl. Responsibility v. U.S. Fish & Wildlife Serv. , 13 3d 1 (D.D.C. 2016) ... ... 189 F. Supp. ... SAS Inst., Inc. v. Iancu , 138 S. Ct. 1348 (2018) ... ... ... ... 7 Sierra Club v. Thomas , 828 F.2d 783 (D.C. Cir. 1987) ... ... ... 13 Texas Children’s Hospital , ... 76 F. Supp. 3d 224 (D.D.C. 2014) ... 17 ... U.S. Army Corps of Eng’rs v. Hawkes Co. , 3 ... ... 136 S. Ct. 1807 (2016) ... ... Univ. of Texas Sw. Med. Ctr. v. Nassar , 570 U.S. 338 (2013) ... ... ... ... 4, 7 W. Org. of Res. Councils v. Zinke , 892 F.3d 1234 (D.C. Cir. 2018) ... ... ... 11 Wis. Gas. Co. v. FERC , 15 758 F.2d 669 (D.C. Cir. 1985) (per curiam) ... ... ... iii

5 Statutes ... ... ... 7, 14 13 U.S.C. § 221 ... § 3502(3)(A) ... ... ... ... 4, 5 44 U.S.C. 44 U.S.C. § 3505 ... ... ... 6 ... 44 U.S.C. § 3506 ... ... ... ... 6 44 U.S.C. § 3507 ... ... ... ... 6 44 U.S.C. § 3510 ... ... ... 6 ... 44 U.S.C. § 3517 ... ... ... ... 6 44 U.S.C. § 3902(a) ... ... ... ... 4, 8 Administrative Procedure Act 5 U.S.C. § 706(1) ... ... ... 11 ... ... 10 5 U.S.C. § 706(2) ... ... ... E Government Act, Pub. L. No. 107 - 347, 116 Stat. 2899 (Dec. 17, 2002) - (codified at 44 U.S.C. § 3501 note) § 2 (b) ( 9 ) ... ... ... ... . 9 ... ... ... ... § 208(a) 7 , 9 ... § 208(b) 2, 4, 6, 7, 11, ... ... ... 12, 14, 17 Regulations ... ... ... 5 C.F.R. § 1320.3(c) 8 ... Other Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts ... ... ... ... (2012) 12 Dep’t of Commerce, Office of Privacy & Open Gov’t, U.S. Census Bureau Privacy Impact Assessments (PIAs) and Privacy Threshold Analysis 12 (PTA) (Oct. 1, 2018) ... ... ... ... iv

6 B. Bolten, Dir., OMB, Executive Office of the President, M03 - 22, Joshua Memorandum for Heads of Executive Departments and Agencies, Attachment A (Sept. 26, 2003) ... ... ... 2, 12 Petition for a Writ of Mandamus, In re Dep’t of Commerce , No. 18 - 557, 19 ... 2018 WL 5458822 (U.S. No v. 16, 2018) ... ... Petition for Writ of Certiorari Before Judgment, U.S. Dep’t of Commerce 15, 16 v. New York, et al. , S. Ct. Dkt. No. 19 - 212 (Jan. 25, 2019) ... ... 16 ... ... Submission for OMB Review, 83 Fed. Reg. 67,213 (Dec. 28, 2018) v

7 SUM ARY M does not deny that it must conduct and publish updated privacy The Census Bureau im prior to the collection of citizenship stat us information. Instead, the Bureau pact assessments argues that the agency’s E - Government Act obligations lie in the distant future . The plain text of section 208 says otherwise. So, too, do the key statutory ter ms and the legislative purpose of the provision . Congress expected that the Bureau would conduct a comprehensive privacy review early in the process, not as the census forms were heading to the printer or delivered to the post . office Congress made clear that federal agen cies, in the management of complex record systems con taining the personal data of Americans, are required to carry out and publish a detailed privacy analysis “before” “initiating” a new collection of personal data . T h e Bureau was obligated to conduct a pr to ivacy impact assessment before Secretary Ross’s March 2018 order , a new and consequential change in the management of census add the citizenship question to the entitlement to a preliminary injunction halting EPIC has demonstrated agency record systems. the Bureau’s collection of citizenship status information pending resolution of EPIC’s APA claims . 1

8 ARGUMENT EPIC IS LIKELY TO SU OF ITS CLAIMS . I. CCEED ON THE MERITS The Bureau A. cannot avoid its long overdue obligation to conduct and publish privacy impact assessment s . was obligated to conduct and publish fully updated The Bureau privacy impact assessments Secretary Ross made the March 2018 decision to add a citizenship qu estion before to the 2020 Census. Because the Bureau failed to do so, EPIC is likely t eed on the merits o succ of its E - Government Act claims . First , the Bureau does not contest , a nd thus concedes , many of the arguments in EPIC’s (citing motion Damarcus S. v. D.C. , 190 F. Supp. 3d 35, 48 (D.D.C. 2016) See DIRECTV, Inc. . v. F CC , 110 F.3d 816, 829 (D.C. Cir. 1997) ) (“[T]he [defendant] does not respond to this argument, and therefore, it is deemed conceded.”). The Bureau concedes that the existing privacy permit impact assessment are not legally sufficient to s a “new collection of [ citizenship status ] does not Bureau ia information ” v the 2020 Census. E - Government Act § 208(b)(1)(A) . The dispute that in the 2020 collection of citizenship status information Census is “new” w ithin the of section 208(b)(1)(A) , or that it poses “new privacy risks” requiring the the meaning Joshua B. Bolten, privacy impact asse sment s. Ex. 15, s completion and publication of updated Dir., OMB, Executive Office of the President, M03 - 22, Memorandum for Hea ds of Executive Departments and Agencies, Attachment A § II.B.2 (Sept. 26, 2003) (“OMB Guidance”) . The claim t Bureau does not even hat it considered the privacy implications of collecting citizenship information before “ final agency action ” to collect that information. Def s.’ the Bureau took Opp’n 18. insists that Yet t Burea u he the obligation to complete revised privacy impact assessments In the Bureau’s view, . is not triggered until questionnaires are sent to the public in January 2020 2

9 the deadline to assessments was not when the Bureau conduct and publish the required ed . . . decisionmaking process” and t ook “mark[ “final agency action” ] the consummation of the citizenship status information to collect on March 26, 2018. U.S. Army Corps of Eng’rs v. , 136 S. Ct. 1807, 1813 (2016) Hawkes Co. see also Defs.’ Opp’n 18 . Rather, the Bureau ; believes that it will not “ initiat[e] a new collection of information ” until — acting pursuant to a forms decision in March 2018 , and using census made finalized in June 2019 — the agency physically distributes census questionnaire s . T ’ s argument ignores the simple fact that, by 2020, the Bureau will have spent he Bureau vast sums and countless hours pursuing for which the required two - year data colle ction process a i to unable p rivacy be mpact a ssessments were never conducted . T he Bureau concedes that it will the agency’s privacy office make questions after June 2019 , even if census any changes to d iscove r s — in the course of its “ongoing” privacy analysis — that the collection of citizenship information poses grave and unjustifiable r isks to privacy that could lead to a determination to remove the question prior to the distribution of the census . A privacy i mpact assessment published on the eve of the census would be effectively Congress, and useless to agency decisionmakers, to participate to members of the public seeking in the ongoing debate over the citizenship question . Therefore, under the Bureau’s view of the law, the privacy impact assessment ection 208 is nothing more than a box - requirement of s checking exercise that can be put off until the moment that the Bureau drops the census forms in the mail . This view of Bureau’s the p rivacy impact assessment obligations is complet ely at odds with the plain meaning, statutory context, and purpose of section 208. The statute states plainly a new collection of information.” E Government Act § - that the obligation arises from “ initiating 3

10 208(b)(1)(A)(ii) (emphasis added) . This phrasing compels the conclusion that a “collection of process Id. ; cf. 44 information” is a that is first “initiat[ed],” then carried out, then completed. (dis tinguishing between the “ initiating, carrying out, [and] completing [of] U.S.C. § 3902(a) [] an audit or investigation the agency takes the final step ”). It is not a discrete event that occurs when information of soliciting or obtaining it would make little sense f or Congress to choose a . Indeed, six - word phrase (“initiating a new collection of information”) if a more obvious three - word phrase ( , “collecting new information”) would suffice. See Univ. of Texas Sw. Med. Ctr. v. e.g. Nassar , 570 U.S. 338, 353 (2013) (“ Congress ’ choice of words is presumed to be deliberate [.]”). This is further confirmed by the statutory definition of “collection of reading information.” defines “collection of information” in terms of 44 U.S.C. § 3502(3)(A) Notably, ing the disclosure to third gerunds: “ the obtaining, causing to be obtained, soliciting, or requir parties or the public, of facts or opinions[.]” Contra Defs.’ Opp’n at 11 (misidentifying the gerunds in § 3502(3)(A) as participles). Congress’s use of these gerunds further signifies that that the “collection of information” is a , not a one - off process action . See, e.g. , Doe v. Bridgeport Police Dep't , 434 F. Supp. 2d 107, 116 (D. Conn. 2006) (“ First, the gerund ‘ injecting ’ . . . ‘ connotes ’ in contrast to the process of injection, to inject, ’ which connotes, to a greater degree, ‘ the specific and direct act of introducing a substance into a human body parenterally. ”) ; N. Na t. Gas Co. v. Comm'r (“ The word ‘acquiring’ (in the regulation) is a gerund , 44 T.C. 74, 78 (1965) a continuing transaction and is a clear recognition that the . . . is indicative of and as such its use Indeed, the Bureau concedes that the [.]”). acquisition of possession may be a gradual process 4

11 “obtaining” (and thus, the collection) of information is a that starts before any data is process 1 tually acquired. ac Defs. Opp’n at 13. e process of “obtaining” citizenship information — or at a bare minimum, the Here, th causing [citizenship information] to be obtained” — began when the Bureau took final process of “ on March 26, 2018 . 44 U.S.C . § 3502(3)(A) (emphasis added) . That is the da te agency action the Bureau was inevitably bound to obt ain citizensh ip information , barring a after which superseding order from a court or a revocation by the agency . The Bureau ’s analog y to a wedding th erefore fails. U nlike a couple th at has finalized its wedding invitation s, invitation but n agency whi them , Secreta ry Ross set in motion a ch has yet to print or mail process that w ould To the . nship data necessarily end with the Bureau’s acquisition of citize ) (absent an intervention extent that the decennial census it is as though a can be analogized to a wedding invitation at all, has placed an order with a full - service printer that will mail invitations on a particular couple date unless the couple cancels the order . It is no stretch to say that such a couple has “commenced the soliciting” of RSVPs. Moreover, th e Bureau’s interpretation of section 208 cannot be squared with other ormation Policy provisions in Title 44, Chapter 35 (“ Coordination of Federal Inf ”) that use the phrase “collection of information . By the Bureau’s telling , a “collection of information” only ” once an agency “actually starts to ask the public to submit . . . information.” comes into existence Yet Chap ter 35 Defs.’ Opp’n at 11. uses the phrase “collection of information” at least twenty 1 The Bureau claims that the “obtaining” of citizenship information will begin when Bureau starts to “mail or distribute census forms to individuals.” Defs.’ Opp’n at 11. However, the Burea u offers no justification for this arbitrary temporal line. The Bureau will not actually “obtain” citizenship information until completed questionnaires are returned, just as the Bureau did not actually “obtain[]” citizenship information by announcing its final decision on March 26, 2018. Yet at both stages, the process of collecting and ob taining citizenship information has been initiated, which is sufficient to trigger section 208. 5

12 times to “ collection [ s ]” for which no information has been solicited or obtained. See 44 refer to collections of information gation to internally “ review . . . U.S.C. § 3505 ,” (noting agencies’ obli 3506 § even though no information has been solicited or obtained) (c)(1)(A), 44 U.S.C. § , (c)(3) (detailing agen internally (c)(1)(A)(i), (c)(1)(A)(v) “ review each cies’ obligation to collection of information ” even though no information has been solicited or obtained ); 44 , U.S.C. §§ 3507 (d)(4)(A), (d)(4)(B), (d)(4)(C), (d)(4)(D), (d)(4)(D )(i), (d)(4)(D)(i)(ii), (d)(6), (e)(1), (h)(2), (h)(2)(A), (h)(2)(B), (j)(1), (j)(1)(A), (j)(1)(B)(iii) (detailing the OMB Director’s authority to approve or reject certain “collection[s] of information” for which no information has solicited or obtai ned); been 44 U.S.C. § 35 17 (a) (noting the OMB Director’s power to review “collections of information” for which no information has been solicited or obtained ) . Indeed , 44 , the U.S.C. 3510 (a) specifically distinguishes between “a collection of information” ( i.e. § process) and the “information obtained by” that collection ( i.e. , the results of the process) . If the none of Bureau’s proposed interpretation of E - Go vernment Act § 208(b)(1)(A)(ii) were correct, these references to a “collection of information” would make sense . statutory The Bureau’s arguments are further undermined by the statutory context of the phrase “initiating a new collection of information [ . ]” E - Government Act § 208(b)(1)(A)(ii) . The a preceding clause E - Government Act sets out of the diffe r ent trigger for privacy impact a assessment s : agencies must complete n assessment before “ develop ing or procur ing information technology that collects, maintains, or disseminates information that is in an identifiable form [.]” h is is not § 208(b)(1)(A)(i). Notably, t requirement to complete an assessment before “using” or a “activating” or “deploying” a new IT system. The obligation attaches much sooner than that , at a can still point when the assessment the results of inform the agency’s decisionmaking process . a proposed system of Section 208 thus forces an agency to consider the privacy implic ations 6

13 before the agency com mits to a potentially wasteful, ill - advised, or unlawful acquisition decision. “new collection[s] of So too with the requirement for assessing the privacy impact of any Government Act § 208( - . In order to “ ensure sufficient protections for information.” E b)(1)(A)(ii) ,” E - Government Act § 208(a) , the privacy of personal information required agencies to Congress conduct, review, and publish t before an assessmen initiating the collection process. It would be strange indeed for Congress to impose a rigorous, early - stage assessment requirement for new IT systems while allowing new collections of personal information to go unexamined by agencies SAS Inst., Inc. v. Iancu ry last minute . until the ve , 138 S. Ct. 1348, 1355 (2018) (quoting See Univ. of Texas Sw. Med. Ctr. , 570 U.S. at 353 ) ( “ ‘ [ J ]ust as Congress ’ choice of words is presumed to be deliberate ’ and deserving of judicial respect, ‘ so too are its structural choices. ’ ” ). agencies to have If Congress actually intended this result, the law would ed simply requir Instead, Congress complete an assessment before new information.” collecting treated the “ — like the introduction of a new — as a process “collection of information” that is IT system initiated before any personal data is actually c ollected . And in both cases, Congress required privacy impact assessments to be conducted and published before the process begins. The Bureau’s remaining arguments fare no better . First, the Bureau fails to show why Secretary Ross’s final decision to collect citiz enship information is not a re quirement to disclose “facts or opinions” to “third parties or the public . U nless the OMB (or the ” Defs.’ Opp’n at 13. judiciary intervenes to prevent the collection of information that Secretary Ross has ) actively o rdered the Bureau to perform , members of the public will inev itably come under an obligation 13 U.S.C. § 221 to disclose their citizenship status via the 2020 Census . See (a) – (b) ( requiring all U.S.C. § 3507(c)(3) (“If the [OMB] Director 44 persons over 18 to respond to census questions); 7

14 does not notify the agency of a denial or approval within the 60 day period . . . the approval may - be inferred.”). erroneously attempts to distinguish the OMB , the Bureau interpretation of the Second ’s nformatio n , phrase “collection of i even though the agency relie s on that same regulation four ” paragraphs earlier. Compare Defs.’ Opp’n at 14 (citing 5 C.F.R. 1320.3(c) ), with Defs.’ Opp’n § at 11 (citi ng 5 C.F.R. § 1320.3(c)). And i ndeed, t he OMB’s view that a “collection of information” includes “ a ” is entirely consistent with the text of the plan and/or an instrument Paperwork Reduction Act. . As noted, a “colle ction of information” under 5 C.F.R. § 1320.3(c) 44 U.S.C. § 3502(3)(A) is a process that begins when a n agency makes a final decision — i.e. , introduces a definite plan or instrument to undertake collection. I n ordering the Bureau to add a — citizenship question to the 2020 Censu s, Secretary Ross assuredly introduced (i n fact , finalized) a plan calling for the collection of citizenship status information. to Third, t he Bureau cites no support for its view a plan” that that an agency “initiat [es] . collect information carries out the plan y when it Defs.’ Opp’ n at 15 . In fact, t hat onl is foreclosed by the Paperwork Reduction Act , which distinguishes between interpretation a process . out” or “completing” See 44 U.S.C. § 3902 (a). “initiating” a process and “carrying Likewise, the Bureau falsely accuses EPIC of “contor t[ing ]” OMB regulations to argue th at a is due privacy impact assessment before an agency “has [even] started planning to collect . information.” But EPIC made no such argument Defs.’ Opp’n at 15. EPIC d id not even use the word “planning” in its motion. As EPIC explained, the relevant trigger is the agency’s plan introduction of definite ‘ “a . . . calling for the collection or disclosure of information[.] ’ ” . Mem. Supp. Pl.’s Mot. at 21 (qu oting 5 C.F.R. § 1320.3(c)) (emphasis added) 8

15 Finall Bureau’s proposed timeline for its privacy impact assessment obligations is y, the the section 208 s of section 208. Congress enacted incompatible with to (1) “to make the purpose Federal Government more transparent and a ccountable” and ensure sufficient protections (2) “to - for the privacy of personal information[.]” E (9), 208(a) . Neither of Government Act §§ 2(b) these objective s would be served if th e assessment requirement d id not mature until the very last minute potentially months or years after an agency had made the final decision to collect — personal information . The entire point of an impact assessment is to “ ensure that decisions about federal act [ill] be made only afte r responsible decisionmakers ha[ve] fully adverted” to the ions w “ , 499 F.2d 502, 512 [ir] actions .” Jones v. D.C. Redevelopment Land Agency consequences of the the agency has T (D.C. Cir. 1974 ). after hat will not happen if an assessment can be completed a potentially made a decision and after final “ irretrievable commitment of resources .” Id. (quoting Lathan v. Volpe , 455 F.2d 1111, 1121 (9th Cir. 1971) ). Moreover, it is entirely possible that a comprehensive privacy impact assessment would lead to the conclusion that the citizenship question should not be asked in light of the record evidence that th e agency may choose to use the data gathered for purposes entirely unrelated to the tabulation of the census. R ead ing section 208 in the way that the Bureau urges would render it a functional nullity and undermine the express purposes of the statute C ourt should decline to do so. . The s construction of section 208 fails as a matter of plain meaning , statutory The Bureau’ shown EPIC has that interpretation, and Congressional purpose. th e Bureau’s obligation to conduct and publish privacy impact assessment s for the collection of ci tizenship information is long overdue. Thus, EPIC is likely to prevail on the merits of its claims . 9

16 B. EPIC’s claims under the APA are both ripe and well - pled . contra PIC claims are also likely to succeed because — the Bureau — they are ripe for E ’s tisfy the requirements for an action under the APA. review and sa Bureau’s rest First, the on the premise that the Bureau is “not yet ripeness arguments But a . Defs.’ Opp’ n at 17. required to publish” s noted , the Bureau privacy impact assessments was required to complete these assessments months ago and failed to do so . Moreover, the Bureau has refused to cure its unlawful conduct despite multiple warnings from EPIC. See Mem. matter Pl.’s Mot. at 12 – 13. As Supp. a result, this presents no risk of “premature adjudication” o r undue “judicial interference” that might otherwise justify postponing judicial review . Nat ’ l Ass ’ n of Home Builders v. U.S. Army Corps of Engineers , 417 F.3d 1272, 1281 (D.C. Cir. 2005) (quoting Abbott Labs. v. Gardner , 387 U.S. 136, 152 (1967) not Indeed, t he Bure au does ). for publishing a dispute privacy impact that a section 208 claim is ripe once the “ threshold ” . EPIC has “ passed.” Defs.’ Opp’n at 17 has also demonstrated the significant assessment hardship that its members will suffer from the Bureau’s ongo ing noncompliance with section Bureau’s failure to complete required 208 . See Mem. Supp. Pl.’s Mot. at 26 – 33 . Given the judicial privacy impact assessmen ts since March of last year , there is little sense in delaying review longer . any EPIC’ s claim Second, § 706(2) is likely to succeed because the Bureau’s under 5 U.S.C. initiation of a new collection of information was “ not in accordance with law ” and was done without observance of procedure required “ by law .” The Bureau seems to misunderstand EPIC’s claim under § 706(2) (Count I). EPIC does, indeed, challenge “the Secretary’s March 26, 2018, decision to direct the Census Bureau to include a citizenship question on the 2020 Decennial ¶ 65 (“ By placing a citizenship question on the 2020 Census and Census[.]” E .g. , C ompl . initiating the process of collecting personal data concerning citizenship status, the Defendants 10

17 have unlawfully begun to develop a new or significantly modified collection of informatio [.]” ); n 27 (asking the ourt to “[h] old unlawful and set aside the Defendants’ decision to Compl. at C ”). collect citizenship data through the 2020 Census By adding the citizenship question to the 2020 Census without first conducting and publishing nece ssary privacy impact assessments , Secretary Ross unlawfully “initiat[ed] a the new collection of information” in violation of E - Government Act § 208(b) A nd a s the (1)(A)(ii). Bureau freely concedes, Secretary Ross’s decision constitute s fina l agency action. Defs.’ Opp’n § 706(2) at 18. is therefore likely to succeed on its EPIC claim . Although EPIC welcomes the Bureau’s promise to “ review[] and update[]” the applicable privacy impact assessment s , this the Bureau assurance does not , make cure the Bureau’s unlawful conduct ’ s actions any less final , . Gen. Elec. Co. ( or mitigate EPIC’s injuries See Nat ’ l Ass ’ n of Home Builders , 417 F.3d at 1282 v. EPA ) (“[I] f the possibility . . . 90 F.3d 377, 380 (D.C. Cir. 2002) of future revision in fact , 2 could make agency action non - final as a matter of law, then it would be hard to imagine when any agency rule . . . would ever be final as a matter o f law.” ); Friedman v. FAA , 841 F.3d 537, 545 (D.C. Cir. 2016) (“The focal point for judicial review should be the administrative record already in existe nce, not some new record made initially in the reviewing court.”). Third, EPIC’s claim under 5 U.S.C. § 706(1) is likely to succeed because the Bureau has assessments that it is required to unlawfully failed to complete privacy impact and conduct , an “agency publish. - Government Act § 208(b )(1) Under E shall ” “ conduct,” “review, and “make . . . publicly available” each privacy impact assessment before “initiating a new collection of information. These are quintessentially “specific, unequivocal command[s].” W. Org. of Res. ” Anglers Conservation Network , 892 F.3d 1234 , 1241 (D.C. Cir. 2018) ; see also Councils v. Zinke Lopez v. Davis ) , 531 U.S. 230, 241 (2001) v. Pritzker , 809 F.3d 664, 671 (D.C. Cir. 2016) (citing 11

18 (“ legislation using ‘shall’ indicates a mandator y duty while legislation using ‘may’ Ordinarily, nfuses ”). he Bureau , in arguing otherwise, co T its own misreading of section grants discretion. equivocality on the part of Congress . 208 for With the word “shall,” Defs.’ Opp’n at 19. Congress that agencies left no doubt take the steps set forth in E - Government Act § must 208(b) (1) (B ). See Ang lers Conservation Network , 809 F.3d at 671 (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts ) ( “The traditional, 112 (2012) is permissive ‘ ’ is man datory and commonly repeated rule is that may ’ shall . . . . ” ) . ‘ T he Bureau points to the phrase “if practicable” to argue that the obligation to p ublish less than relevant is somehow privacy impact assessments unequivocal . E - Government § 208(b) be ublication would makes no attempt to explain how p (1)(B)(iii) . But the Bureau l impractica here . In other words: secti on 208(b) (1)(B)(iii) creates a narrow “impracticability” an requirement that assessments be published — an exception exception to otherwise universal does not apply in this case . The Bureau would be har d - that to argue otherwise, given that pressed it publishes privacy impact assessments routinely . Dep’t for all five of the relevant CEN systems of Commerce, Office of Privacy & Open Gov’t, U.S. Census Bureau Privacy Im pact Assessments 2 . (Oct. 1, 2018) (PIAs) and Privacy Threshold Analysis (PTA) Moreover, the OMB — in interpreting section 208(b) — has limited the “imprac ticability” exception to (1)(B)(iii) s that would “ reveal classified (i.e., national security) information or sensitive assessment information (e.g., potentially damaging to a national interest, law enforcement effort or competitive business interest) [.]” Ex. 15, OMB Guidance § II.C.3.a.iii.1. Thus, the words “if practicable” do not d the Bureau’s mandatory duty to complete and publish updated iminish assessments for the collection of citizenship information. 2 - pias.html. http://www.osec.doc.gov/opog/privacy/Census 12

19 The Bureau’s attempt to avoid judicial review of its failure to act is also misplaced. ended obligation to act where an agency has an open - Defs.’ Opp’n at 18 n.6. This is not a case he Id. but Rather , t “has simply not yet taken action[.]” Bureau had a fixed deadline to conduct and publish the relevan t privacy impact assessments — March 26, 2018 — and missed that can change the fact that deadline. hing the Bureau does now ( or in the future ) Not the Bureau refused to act when it was required to. Thus, the Court can undertake review of the Bureau’s failure to act “ as though the agency had denied the requested relief [ . ] ” Friedman , 841 F.3d at 545 (quoting Sierra Club v. Thomas , 828 F.2d 783, 793 (D.C. Cir. 1987) ). Finally, despite the Bureau’s suggestion to the contrary, EPIC is not undertaking a “broad Norton against the Bureau’s privacy practices. Defs.’ Opp’n at 19 (quoting programmatic attack” solely v. Southern Utah Wildern challenging the . EPIC is ess Alliance , 542 U.S. 55, 64 (2004) ) Bureau’s decision in itiating a colle ction of citizenship information and the Bureau’s premature conduct and publish required privacy impact assessment s. Compl. ¶¶ 64 – unlawful failure to 78. II. EPIC WILL SUFFER IRREPARA BLE HARM ABSENT AN I NJUNCTION . s the purp ose of s ection 208 and the nature of the The Census Bureau misunderstand irreparable injury that EPIC and its members ar e suffering as a result of the Bureau ’s failure to meet the privacy impact assessment obligations. The Bureau’s arguments are also chronologically inconsistent — it canno t be the case that EPIC was too late in seeking an injunction, Defs.’ Opp’n 21 – s ection 208, 23, and simultaneously too early to state a claim under – Defs.’ Opp’n 24 And t he Bureau ’s defense ignores the directly analogous rulings on 26. irreparable injury in the environmental impact assessment context. See Mem. Supp. Pl . ’s Mot. 30 – 31 (citing Jones , 499 F.2d at 502; Pub. Emps. For Envtl. Responsibility v. U.S. Fish & ). (D.D.C. 2016) Wildlife Serv. , 189 F. Supp. 3d 1 , 2 13

20 Under the ’s view of the l aw, “the earliest that [EPIC’s] members could Bureau demonstrate injury is January 2020 when the Census Bureau first begins mailing or otherwise transmitting the 2020 Decennial Census questionnaire to the public.” Def . ’ Opp ’n . 26. But that s well knows, it will be far too late makes no sense. As the by January 2020 for an Bureau adequate evaluation of the census c ollection process. Neither the Bureau nor any individual who will receive the questionnaire could meaningfully review or propose modifications to the c after the materials have been sent. The Bureau ollection of information recognizes that once it sends out the questionnaires, individuals will be legally obligated to respond. See Defs.’ Opp’n 14 (quoting 13 U.S.C. § 221 (a)). If individuals who will be req uired to provide personal data to the Census Bureau are not given access to the agency’s privacy impact assessment before the s Bureau finalizes its plans to collect the data, then they will have no opportunity to protect their rights and will thus be irrep arably injured. After all, “stale information is of little value.” Judicial Payne Enters., Inc. v. United (quoting Watch, Inc. v. DHS , 895 F.3d 770, 778 (D.C. Cir. 2018) States ). Moreover, the Bureau ’s failure to conduct requ ired , 837 F.2d 486, 494 (D.C. Cir. 1988) privacy impact assessment s means that the agency never in fact assessed whether the data collection should go forward prior to its decision “initiating a new collection of information.” E - (1)(A). Government Act § 208(b) The D.C. Circuit’s environment al impact cases make clear that when the statement ’s agency decisionmaking process ends without the requisite assessment being conducted and published, plaintiffs may suffer irreparable harm. The Bureau concedes that the Secretary of Commerce’s March 26, 2 018, order to collect citizenship data in the 2020 Census was a revi ewable final agency action. Def s .’ Opp ’n . 18. The March 2018 Order by Secretary Ross Bureau therefore concluded the decisionmaking process and triggered the ’s legal obligation to 14

21 conduct t privacy impact assessments and make those assessments publicly available he requisite under s Jones , the irreparable injury “matures ection 208. As the D.C. Circuit explained in t and fails to do so simultaneously . . . at the time the agency is” obligated to file the assessmen - makers to take [the required] factors into because the harm stems from “the failure of decision account” as the law requires. 499 F.2d at 512 . The court’s equitable intervention is necessary “before there has been an ‘irretrievable com mitment of resources’” to ensure that the assessment is “not merely a justification for a fait accompli.” . But there is no way for EPIC or its Id members to ensure that the Bureau has incorporated an adequate priva cy assessment into the decision making proc ess if judicial review is not available until the collection of information has already begun. The Bureau’s main argument against EPIC ’ s straightforward informational injury motion should be denied because of a “delay in seeking relief,” De fs.’ Opp’n claim — that the 21 23 — is based on a misreading of relevant cases and a misunderstanding of the irreparable – injury in this case. There is nothing “ unsubstantiated and speculative ” about the harm that EPIC and its members suffer as a result of the Bureau ’s refusa l to conduct a privacy impact assessment. Wis. Gas. Co. v. FERC , 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam) . Both ’s updated assessment parties agree that EPIC’s members cannot currently review the Bureau s because do not exist. Both sides also agr ee that the Bureau will begin printing the 2020 they Census forms in June 2019 (in less than four months). Indeed, the Department of Commerce has requested extraordinary relief in the United States Supreme Court because of the uniquely urgent circumstances surr ounding the census. See Petition for Writ of Certiorari Before Judgment, U.S. Dep’t of Commerce v. New York, et al. , S. Ct. Dkt. No. 19 - 212 (Jan. 25, 2019) . In its petition, the ork “‘ that the census case out of the Southern District of New Y is a matter Government contends 15

22 of national importance with ‘ massive and lasting consequences, ’” because the census “ occurs ’ Id only once - over.” a decade, with no possibility of a do . (quoting New York, et al. v. U.S. Dep’t of Commerce , No . 18 - 2921 , 2019 WL 19 0285, at *4 (S.D.N.Y. Jan. 15, 2019) ). The injury that EPIC’s members face is irreparable precisely because the census collection will be impossible to stop after the forms are printed in June. The Bureau also recognizes that EPIC did not rest on its laure ls during the period between Secretary Ross’s March 2018 Order and the Motion for a Preliminary Injunction. EPIC advocated forcefully — both directly with the Bureau and through congressional and judicial - — Government Act oversight bodies ts obligations under the E that the agency had failed to meet i and had failed to assess the privacy impact that the proposed collection of citizenship data would of millions of individuals. Mem. Supp. Pl.’s Mot. 12 – 13. Meanwhile, the have on hundreds Bureau released two privac y impact assessments in 2018 but failed to address the collection of citizenship data in either assessment. Bachman Decl. ¶ 9. When the Bureau failed to respond to EPIC’s comments or to rescind the citizenship question, EPIC filed this suit. The Bureau con tinued to move forward with the planned collection and submitted its materials for review by the Office of Management and Budget under the Paperwork Reduction Act. Submission for OMB Review, 83 Fed. Reg. 67,213 (Dec. 28, 2018) . At that point, after EPIC had repeatedly called on the Bureau to conduct the required privacy impact assessment, it became clear that the court would need to intervene to prevent the agency from running out the clock. The cases that the Bureau cit es are simply not on point here: none of those cases inv olved a plaintiff who was advocating for a federal agency to comply with the law through multiple oversight mechanisms (executive, legislative, and judicial) prior to seeking emergency relief. nt pursuit of a variety of avenues Indeed, courts have found that when a plaintiff makes a “dilige 16

23 for reversing a policy,” their delay in seeking preliminary injunctive relief “does not give rise to Texas Children’s Hospital v. an inference that the harm is not irreparable and imminent.” , 76 F. Supp. 3d 224, 2 45 (D.D.C. 2014) . C ourts are instead concerned wi th Burwell delays that are extensive and unexplained ( e.g. - year delay in Indep. Bankers Ass’n v. Heimann , , a twelve 627 F.2d 486, 488 (D.C. Cir. 1980) ) , or cases where a delay render s the dispute moot. The d elay in Open Top Sightseeing was especially egregious because the plaintiff requested that the court delay a indefinitely hearing on its own preliminary injunction motion . Open Top Sightseeing USA v. Mr. Sightseeing, LLC , 48 F. Supp. 3d 87, 90 – 91 (D.D.C. 2 014) . This was not only “dilatory” but also harmful to the defendant because “the mere presence of the motion for injunctive relief [caused] a chilling effect on their business and hiring practices.” Id . The , 226 F. Supp. 3d AARP v. U.S. EEOC he Bureau unexplained delays in the other cases cited by t — 7 (D.D.C. 2016) , 448 F. Supp. 2d 153 (D.D.C. 2006) ; Mylan Pharms., Inc. Biovail Corp. v. FDA ; v. Shalala , 81 F. Supp. 2d 30 (D.D.C. 2000) — were not a significant factor in the irreparable e of the plaintiffs had established harm in first place. harm analysis, since non the Finally, the Bureau attempts to argue that various dicta from Freedom of Information Act (“FOIA”) cases undercut the legal entitlement of EPIC’s members to access the Census Bureau’s privacy impa ct assessment s prior to the final decision to collect a new category of sensitive information – 24. But unlike the FOIA, the E - Government Act provide s that . Defs.’ Opp’n 23 information must be published by a specified time: before an agency initiates a new collection of information. E - Government Act § 208(b) (1). The fact that the Bureau now plans to “update its PIAs, including the PIA for CEN08, over the coming months,” Defs.’ Opp’n 24, does not weigh against granting EPIC’s motion for a preliminary injuncti on. If anything, the fact that the Bureau the need to update these shows that the equities privacy impact assessments already recognize s 17

24 weigh in EPIC’s favor. Ultimately, the ’s irreparable harm argument col lapses Census Bureau Bureau was required to conduct and publish the court agrees that the into its merits argument: if a privacy impact assessment Secretary Ross’ March 2018 order, then the agency’s before arguments against irreparable harm all fall apart. III. THE EQUITIES AND PUB LIC INTEREST WEIGH I N FAVOR OF AN INJUNCTION . The Census Bureau concedes that both the agency’s own interests and the public interest will be served by completion of adequate privacy impact assessment . Defs.’ Opp’n 27 – 28. The fact that the Bureau now “anticipate[s] that updated a ssessments will be made publicly available on the Department of Commerce website on or before Mar ch 2019” does not counsel against the relief from this Court . Defs.’ Opp’n 28. Rather, t hat fact weighs in favor of an : injunction Bureau process required has already begun the to comply with the law and to eventually remove the need for a preliminary injunction. Courts have made clear that where an injunction “‘ not substantially injure other does interested parties ,’ the balance tips in the movant’s favor.” Jac into - Castanon de Nolasco v. ICE , 319 F. Supp. 2d 491, 503 (D.D.C. 2018) , (quoting League of Women Voters of the U.S. v. Newby ). And a defendant “cannot suffer harm from an injunction that 838 F.3d 1, 12 (D.C. Cir. 2016) merely ends un unlawful practice.” I d . (quoting Open Communities Alliance v. Carson , 286 F. ). Here the Census Bureau has not even attempted to identify Supp. 3d 148, 179 (D.D.C. 2017) any injury that the agency or any other “interested” party would suffer as a result of the Court preliminari ly enjoining collection of citizenship data . Instead, the Bureau says “the public Government Act.” Defs.’ interest lies in permitting Defendants to continue to comply with the E - Opp’n 28. 18

25 There can be no question that the public is bet access to fulsome, ter off when it has ection 208 of - - date privacy impact assessment s adequate, and up s to . One of the core purposes of the E - Government Act is to ensure that the public has such information. The public also benefits from EPIC having access to that information, because EPIC serves an important public education function. EPIC’s mission is “to focus public attention on emerging privacy and civil liberties issues” and to conduct “oversight of government activities that impact individual privacy, free expression, an d democratic values.” Compl. ¶ 5. Therefore, the interests of the individuals whose data will be collected by the Bureau are served both by the public release of an adequate privacy impact asses sment and by EPIC’s access to that assessment. The public int erest also favors injunctive relief at this stage to avoid the wasteful “commitment of resources” by the Census Bureau that would result if the agency had to unwind Lathan at the citizenship data collection after the fact . Jones , 499 F.2d at 512 (quoting , 455 F.2d 1121). in its other cases that “finalizing the decennial census he Bureau has argued T - sensitiv ” and questionnaire is time that it is “important to resolve as soon as possible” the key e legal issu es concerning the 2020 Census. Petition for a Writ of Mandamus at 15, In re Dep’t of Commerce , No. 18 - 557, 2018 WL 5458822 (U.S. Nov. 16, 2018) . If no injunction issues prior to final judgment in this case, the Bureau will likely expend significant resources collecting - c — which this Court may later deem unlawful. See New York , No. 18 itizenship data 2921 , 2019 WL 190285, at *121 ( “ [T] he whole point of the parties’ and the Court’s haste in this litigation is that the census questionnaires have not yet been printed and that orde ring any remedy after they ). ” are printed would result in significantly greater disruption and expense. 19

26 Because the balance of the equities and the public interest strongly favor a halt to the EPIC has shown that it is entitled to Census Bureau’s implementation of the citizenship question, ary injunction . a prelimin CONCLUSION the foregoing reasons , the Court For should grant EPIC’s motion for a preliminary injunction. Respectfully Submitted, MARC ROTENBERG, D.C. Bar #422825 EPIC and Executive President Director ALAN BUTLER, D.C. Bar #1012128 E PIC Senior Counsel /s/ Davisson John JOHN D.C. Bar #1531914 DAVISSON, Counsel EPIC ELECTRONIC PRIVACY INFORMATION CENTER 1718 Avenue, N.W. Connecticut Suite 200 D.C. Washington, 20009 483 - 1140 (telephone) (202) (202) 483 - 1248 (facsimile) Attorneys for Plaintiff EPIC Dated: February 5, 2019 20

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