By Harry Hammit
Hammit is publisher of Access Reports, a bi-monthly report on U.S. and Canadian freedom of information legal developments.
The D.C. Circuit has finessed the issue of whether visitors’ logs at the White House or the Vice President’s office are agency records subject to FOIA because they are used by the Secret Service by ruling that because the records directly reflect information provided by the President or Vice President’s staff they qualify as presidential records and are not agency records.
The court also pointed out that to allow access to the visitors’ logs would pose serious separation of powers issues. Writing for the court, Chief Circuit Court Judge Merrick Garland noted that “in order to avoid substantial separation-of-powers questions, we conclude that Congress did not intend to authorize FOIA requesters to obtain indirectly from the Secret Service information that it had expressly barred requesters from obtaining directly from the President.”
Previous Litigation
The issue of whether visitor log records used by the Secret Service to monitor and control access to the White House qualify as agency records has been litigated several times previously in district court.
In three different decisions, district court judges found that, even though a memorandum of understanding between the White House and the Secret Service classified the records as presidential and provided that the Secret Service give them to the White House after they were finished using them, because the Secret Service used the records in carrying out its statutory duty they were agency records when in the possession of the Secret Service. After Judge Royce Lamberth ruled in favor of CREW on the agency record status of the logs, a coalition of open government groups negotiated an agreement with the Obama White House that would provide discretionary access to the records. Although that system has been in place for several years, Judicial Watch decided it was too restrictive and filed suit, arguing that such records were completely subject to FOIA through the Secret Service. Judge Beryl Howell agreed with Judicial Watch and the administration appealed Howell’s decision to the D.C. Circuit.
Court’s Reasoning
Garland started with the Supreme Court’s ruling in Kissinger v. Reporters Committee, 445 U.S. 136 (1980), in which the Court found that the Office of the President was not subject to FOIA as the basis of his ruling. First, he indicated that “it is therefore undisputed that a requester could not use FOIA to compel the President or his advisors to disclose their own appointment calendars or visitor logs,” adding that “in part, Congress exempted such records from FOIA—and later subjected them to the Presidential Records Act instead—in order to avoid serious separation-of-powers concerns that would be raised by a statute mandating disclosure of the President’s daily activities.” Relying again on Kissinger, he observed that “the second thing we know is that not all documents in the possession of a FOIA-covered agency are ‘agency records’ for the purpose of that Act.”
The Supreme Court’s decision in Dept of Justice v. Tax Analysts, 492 U.S. 136 (1989), established a four-factor test for assessing whether a record was an agency record—(1) the intent of the document’s creator to retain or relinquish control of the record, (2) the ability of the agency to use and dispose of the record as it sees fit, (3) the extent to which agency personnel have read or relied upon the document, and (4) the degree to which the document was integrated into the agency’s record system or files—which Howell used to assess the Secret Service’s claim that the visitor logs were not agency records. While Howell found that all four factors weighed against the Secret Service, Garland was not so sure, pointing out that the MOU clearly restricted the agency’s ability to use or dispose of the record as it saw fit and observing that while the agency clearly possessed the records at some point it was unclear whether the records could be considered to have been integrated into the agency’s files.
To bolster his conclusion, Garland trotted out a litany of cases involving disclosure restrictions placed on records by entities not subject to FOIA.
Most of the cases involved restrictions placed on agencies by Congress. Garland found United We Stand America v. IRS, 359 F.3d 595 (D.C. Cir. 2004), in which the court found “sufficient indicia of congressional intent to control” portions of IRS records prepared in response to a congressional request to conclude that those portions of the records were not agency records subject to FOIA, to be a particularly apt analogy to the White House visitors log records. He noted that “this case also involves documents that an agency created in response to requests from, and information provided by, a governmental entity not covered by FOIA. . .Second, as in United We Stand, the non-covered entity—here, the White House—has ‘manifested a clear intent to control’ the documents. And that means the agency is not free to use and dispose of the documents as it sees fit. Third, disclosing the records would reveal the specific requests made by the non-covered entity—here, the Office of the President’s requests for visitor clearance.”
Separation of Powers Cited
Garland then used separation-of-powers concerns as a further reason to conclude that the White House visitor logs were not subject to FOIA.
Citing the avoidance canon—the principle that courts should avoid ruling on constitutional questions if there is an alternative way to resolve the potential conflict—Garland explained that “construing the term ‘agency records’ to extend to White House visitor logs—regardless of whether they are in the possession of the White House or the Secret Service—could substantially affect the President’s ability to meet confidentially with foreign leaders, agency officials, or members of the public. And that could render FOIA a potentially serious congressional intrusion into the conduct of the President’s daily operations.”
To support his separation-of-powers argument, Garland compared this case with two Supreme Court cases involving the Federal Advisory Committee Act—Public Citizen v. Dept of Justice, 491 U.S. 440 (1989) and Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367 (2004)—both of which concluded that FACA could not constitutionally be applied in certain situations involving advice to the President or Vice President. He pointed out that the seminal decision on whether or not EOP was subject to FOIA, Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971), avoided the separation-of-powers issue by excluding coverage of staff whose sole function was to advise the President. The Soucie standard was adopted by Congress in the 1974 FOIA Amendments and Garland observed that “it appears that not only this court, but Congress as well, wished to avoid the serious separation-of-power questions that too expansive a reading of FOIA could engender. When that is the case, it is doubly our obligation to seek a construction that avoids constitutional conflict.”
Having removed the visitors’ logs from FOIA, Garland then indicated that they qualified as presidential records under the Presidential Records Act. He noted that the visitors’ records “are arguably ‘created’ by White House staff and White House pass readers on servers physically located in the White House Complex.” Further: “They are generated whenever the President consults agency officials, negotiates with foreign heads of state, or speaks with private organizations or individuals at the White House. . .[The visitors’ logs] thus track quite nicely with the definition of ‘Presidential records’ found in the PRA.”
Judicial Watch argued that any separation-of-powers concerns could be mitigated by applying Exemption 5 (privileges) to the records. But Garland noted that “in another district court case presenting almost the identical question, they argued—and the court agreed—that [the White House] visitor records do not fall within Exemption 5 because they consist only of the names of the visitor, visitee, and date and time of the visit.” He added that “there are no decisions in this court that address whether the presidential communications privilege contained in Exemption 5 extends to the names of visitors to the President and his staff. And it seems to us that deciding that question would be at least as difficult—and present separation-of-powers questions at least as serious—as deciding the question now before us. We see nothing to be gained by trading one difficult question for another.” He indicated that “even if a significant subset of [White House visitors’ records] would be protected by Exemption 5, the burden of identifying those records on a document-by-document basis is substantial enough to make that an ineffective way of mitigating the kind of separation- of- powers concerns at issue here.”
Garland agreed that there was a small subset of EOP records that were subject to FOIA, including at least OMB and the Council on Environmental Quality, “whose ‘sole function’ is not to ‘advise and assist the President.’ These offices are ‘agencies’ under FOIA, and their records are ‘agency records’ subject to disclosure.” As a result, any records pertaining to visits to those offices were agency records subject to disclosure under FOIA. (Judicial Watch, Inc. v. United States Secret Service, No. 11-5282, U.S. Court of Appeals for the District of Columbia, Aug. 30)
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