By Harry Hammitt
Hammitt publishes Access Reports, a biweekly newsletter. This article is reprinted with permission from his latest issue: Access Reports, Aug. 24, 2011, v. 37, n. 17
Relying heavily on previous district court rulings directly on point, Judge Beryl Howell has ruled that visitors’ log records for the White House and the Vice President’s residence are agency records of the Secret Service and must be processed pursuant to a FOIA request from Judicial Watch.
During the Bush administration, the government had contended that, pursuant to a memorandum of understanding, the records were not agency records, but, instead, presidential records reflecting White House business.
In cases brought by the Washington Post and CREW, two district court judges concluded that, regardless of the fact that the Secret Service typically turned over the records to the White House, the agency created the records for an agency function and used the records for that function, thus exercising the necessary custody and control.
Although the Obama administration settled the CREW litigation by agreeing to voluntarily make the bulk of visitors’ records available routinely, Judicial Watch challenged its continued reliance on the theory that the records were not agency records and filed suit, insisting that all visitors’ records were subject to FOIA.
Judge’s Reasoning
Howell first noted that “the Secret Service seeks to emphasize the role that Presidential and Vice-Presidential staff members play by providing much of the information that makes up the records,” particularly information about visitors and who they were visiting. She then pointed out that “regardless of what information may be supplied by outside actors, the [visitors’ records] are largely generated by the Secret Service, and are undisputedly obtained by the Secret Service. Indeed, the records are generated specifically for use by the Secret Service.”
Howell then turned to the D.C. Circuit test for determining what constituted control—the intent of a document’s creator to retain or relinquish control, the ability of the agency to use and dispose of the record as it sees fit, the extent to which agency personnel have read or relied upon a document, and the degree to which the document is integrated into the agency’s record system or files.
Based on the MOU, Howell observed that “the stated intent of the Secret Service is unambiguously to relinquish control of the records. . . and the Secret Service’s actions are not necessarily inconsistent with that intent. The ‘intent’ factor of the analysis, therefore, weighs in the defendant’s favor.”
Circular Argument
Turning to the use and disposal factor, Howell indicated that “the Secret Service argues that it is unable to dispose of the records freely because they are ultimately White House records and not agency records. This argument is circular.
The claimed restrictions on disposal stem from the defendant’s assumption that the documents are under Presidential control—the exact point that the defendant seeks to prove to establish that the documents are not subject to FOIA.” Rejecting the claim, Howell noted that “while the Court duly recognizes that the Secret Service’s freedom to use and dispose of the records is somewhat circumscribed, this portion of the calculus does not weigh in the Secret Service’s favor.”
The agency argued its reliance on the records was limited. But Howell pointed out that “this ‘limited’ reliance is directly tied to the purpose of the records in the first place. The [visitors’ logs] are created—above all else—to facilitate the precise uses for which the Secret Service relies upon them” in admitting visitors to the White House and Vice-President’s residence.
She explained that “the fact that the Secret Service uses the documents for the limited purpose for which they were created strongly suggests the documents are ‘agency records’ under FOIA.”
The agency contended it did not integrate the records into its files, but transferred them to the White House. Howell observed that “it is also worth noting that the Secret Service has ‘retained copies’ of all of the [visitors’] data in question. Even if the Court assumes that all of the records in question have, in fact, been deleted from the Secret Service’s computer system since their initial use, the Secret Service does not contest that the records were at one point an integrated portion of its computer system.”
Howell then dismissed the agency’s constitutional separation of powers argument that disclosure could impinge on presidential confidentiality. She pointed out that “the FOIA has built-in exemptions that mitigate the risk of the precise separation of powers concerns the defendant raises. . .”
Some Segregation Possible
Acknowledging the agency’s national security concerns, Howell told the agency to process the request. She noted that “at no point does the Secret Service assert, however, that there are not at least some records implicated by plaintiff’s FOIA request that could be easily searched for, separated out, and disclosed without raising national security concerns. For example, there may be certain White House components whose visitors never implicate national security concerns.”
She concluded that “the proper course of action by the Secret Service is duly to process plaintiff’s FOIA request, disclose all segregable, non-exempt records, and then assert specific FOIA exemptions for all records it seeks to withhold. . . At this stage, however, the defendant has not met its burden to show that the requested material either falls within a FOIA exemption or would be unreasonably burdensome to search.” (Judicial Watch, Inc. v. United States Secret Service, Civil Action No. 09-2312 (BAH), U.S. District Court for the District of Columbia, Aug. 17)
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