Judicial Watch, Inc. v. U.S. Secret Serv.

Citation726 F.3d 208
Decision Date30 August 2013
Docket NumberNo. 11–5282.,11–5282.
PartiesJUDICIAL WATCH, INC., Appellee v. UNITED STATES SECRET SERVICE, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

OPINION TEXT STARTS HERE

Appeal from the United States District Court for the District of Columbia (No. 1:09–cv–02312).

Mark B. Stern, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Tony West, Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General, and Michael S. Raab and Abby C. Wright, Attorneys. Brad P. Rosenberg, Trial Attorney, entered an appearance.

James F. Peterson argued the cause and filed the brief for appellee. Paul J. Orfanedes entered an appearance.

David Murray was on the brief for amici curiae Bloomberg L.P., et al. in support of appellee.

David L. Sobel, Anne L. Weismann, and Melanie Sloan were on the brief for amici curiae Citizens for Responsibility and Ethics in Washington, et al. in support of appellee.

Before: GARLAND, Chief Judge, and SENTELLE and WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge:

Judicial Watch filed a Freedom of Information Act (FOIA) request with the Secret Service, seeking records of every visitor to the White House Complex over a period of seven months. The Secret Service denied the request, arguing that the requested documents are not “agency records” subject to disclosure under FOIA. The district court rejected that argument and ordered the agency to release the records or assert specific FOIA exemptions on a document-by-document basis. We reverse in part and affirm in part.

In both the 1974 FOIA Amendments and the 1978 Presidential Records Act, Congress made clear that it did not want documents like the appointment calendars of the President and his close advisors to be subject to disclosure under FOIA. Granting Judicial Watch's request for certain visitor records, however, would effectively disclose the contents of those calendars. For the reasons discussed below, we conclude that such records are not “agency records” within the meaning of FOIA.

In addition to the President and his advisors, the White House Complex also houses components that Congress did intend to subject to FOIA. We conclude that records of visits to those components are “agency records” subject to disclosure under the Act.

I

In 1951, the year after two men attempted to assassinate President Truman just across the street from the White House, Congress permanently authorized the Secret Service to protect the President and Vice President. See Pub.L. No. 82–79, § 4, 65 Stat. 121, 122 (1951) (codified at 18 U.S.C. § 3056(a)). Upon signing the legislation, Truman reportedly remarked: “Well, it is wonderful to know that the work of protecting me has at last become legal.” Philip H. Melanson, The Secret Service: The Hidden History of an Enigmatic Agency 54 (2002).1 In 1984, three years after an attempt on the life of President Reagan, Congress made acceptance of such protection by the President, Vice President, President-elect, and Vice President-elect mandatory. SeePub.L. No. 98–587, 98 Stat. 3110 (1984) (codified at 18 U.S.C. § 3056(a)).2

The Secret Service's authorizing statute extends protection not only to the persons of the President and Vice President, but also to the buildings in which they live and work, including the White House Complex. See18 U.S.C. § 3056A(a)(1)-(2); White Decl. ¶ 5. The White House Complex includes the White House, the Eisenhower Executive Office Building (EEOB), their surrounding grounds, and the New Executive Office Building. White Decl. ¶ 4. Those buildings house offices for the President and the Vice President, as well as their staff and advisors.

In order to carry out its statutory responsibilities, the Secret Service monitors and controls access to the White House Complex. It accomplishes this task through an electronic system known as the White House Access Control System (WHACS). WHACS has two principal components: the Worker and Visitor Entrance System (WAVES) and the Access Control Records System (ACR).

WAVES records are generated in the following way. Generally, when the President, Vice President, or a member of their staffs wants to receive a visitor at the White House Complex, an authorized White House pass holder must submit information about the visitor and visit to the Secret Service. See Mem. of Understanding Between White House Office of Records Mgmt. & U.S. Secret Serv. Records Mgmt. Program ¶ 4 (May 17, 2006) (MOU). That information includes (inter alia) the visitor's name, the date and location of the planned visit, and the name of the pass holder submitting the request. Id. “Ordinarily, this identifying information is provided to the Secret Service electronically. An authorized ... pass holder enters the information into a computer that automatically forwards it to the Secret Service for processing.” Droege Decl. ¶ 6. The information may also be provided to the Secret Service in other ways, including by telephone and email, in which case Secret Service personnel transmit the information electronically to the WHACS server. Id.; White Decl. ¶ 7.3

Once a visitor is cleared into the White House Complex, he or she is generally issued a badge. ACR records are generated (and WAVES records updated) whenever the visitor swipes the badge over one of the electronic pass readers located at the White House Complex's entrances and exits. MOU ¶ 5; Droege Decl. ¶ 7; White Decl. ¶¶ 9, 10. ACR records include the pass holder's name, the time and date of the swipe, and the post at which the swipe was recorded. MOU ¶ 5.

According to the government, the information contained in WHACS records is provided to and used by the Secret Service “for two limited purposes”: to perform a background check on the visitor, and to verify the visitor's admissibility at the time of the visit. MOU ¶ 12; White Decl. ¶ 7. Once the visit ends, the information “has no continuing usefulness to the Secret Service.” MOU ¶ 13.

Because the Secret Service has “no continuing interest” in the information, [s]ince at least 2001, it has been [its] practice ... to transfer newly-generated WAVES records” to the White House every 30 to 60 days on compact discs. White Decl. ¶ 11; Droege Decl. ¶ 10; see MOU ¶ 14; Lyerly Decl. ¶ 10 (May 2006). The Secret Service erases the transferred records from the WHACS servers and overwrites them with new records. MOU ¶ 14; White Decl. ¶ 11. Prior to October 2004, the Secret Service did not keep copies of the transferred WAVES records. Lyerly Decl. ¶¶ 10, 11 (May 2006); see MOU ¶ 14. In October 2004, however, the Secret Service began retaining copies of the transferred WAVES records on compact discs, due in part to then-pending litigation. MOU ¶ 16; Lyerly Decl. ¶ 13 (Sept.2006); Droege Decl. ¶ 10.

“At least as early as 2001 (at the end of the Clinton Administration), and upon revisiting the issue in 2004, the Secret Service and the White House recognized and agreed that ACR records should be treated in a manner generally consistent with the treatment of WAVES records.” White Decl. ¶ 13; Droege Decl. ¶ 11. In particular, [t]he White House and the Secret Service ... determined that ACR records should be transferred to the [White House] and deleted from the Secret Service's computers like WAVES records.” White Decl. ¶ 13; see MOU ¶ 15. Since at least 2006, the Service has transferred ACR records to the White House, generally every 30 to 60 days. Droege Decl. ¶ 11; see White Decl. ¶ 13 (stating that ACR records dating from 2001 were also transferred in 2006). Once again, however, the Service has retained copies of the records due in part to pending litigation. Droege Decl. ¶ 11; White Decl. ¶ 13; MOU ¶ 15.

The volume of FOIA litigation regarding White House visitor records increased in 2006. In that year, a FOIA request was filed for all WHACS records pertaining to visits scheduled with Vice President Dick Cheney or his staff. See Wash. Post v. Dep't of Homeland Sec., 459 F.Supp.2d 61, 64 (D.D.C.2006). A steady march of similar requests followed. They included requests for records of every visit by lobbyist Jack Abramoff, see Judicial Watch, Inc. v. U.S. Secret Serv., 579 F.Supp.2d 143, 145 (D.D.C.2008); every visit by lobbyist Stephen Payne, Citizens for Responsibility & Ethics in Wash. (CREW) v. U.S. Dep't of Homeland Sec., 592 F.Supp.2d 127, 129 (D.D.C.2009); and every visit by eighteen health care executives,4 to name only a few.5 The Secret Service refused each request, asserting that WAVES and ACR records are not “agency records” subject to FOIA, but rather are “Presidential records” subject to the more restrictive disclosure regime established by the Presidential Records Act (PRA), 44 U.S.C. §§ 2201 et seq.See, e.g., CREW, 592 F.Supp.2d at 131;Wash. Post, 459 F.Supp.2d at 65.

In May 2006, the White House and the Secret Service executed a Memorandum of Understanding (MOU). The MOU memorialized the parties' historical practice and intentions regarding WHACS records, as described above. It also stated the parties' joint “agreement” that WHACS records are “Presidential Records,” and “are not the records of an ‘agency’ subject to the Freedom of Information Act.” MOU ¶ 17.

In 2008, a suit arising out of a FOIA request for WHACS records reached this court for the first time. The request sought records of every visit by nine “conservative Christian leaders.” CREW v. U.S. Dep't of Homeland Sec., 527 F.Supp.2d 76, 78 (D.D.C.2007). We dismissed that appeal for lack of jurisdiction. See CREW v. U.S. Dep't of Homeland Sec., 532 F.3d 860, 868 (D.C.Cir.2008). After further proceedings in the district court, the parties settled the dispute. SeeJoint Mot. to Vacate, CREW v. U.S. Dep't of Homeland Sec., No. 06–1912 (D.D.C. Sept. 9, 2009).

The present litigation involves the latest and broadest FOIA request for WHACS...

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