Crew v. U.S. Dept. of Homeland Sec.

• Decision Date: 17 December 2007
• Docket Number: Civil Action No. 06-1912 (RCL).
• Citation: 527 F.Supp.2d 76
• Parties: CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendant.
• Court: U.S. District Court — District of Columbia

527 F.Supp.2d 76

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendant.

Civil Action No. 06-1912 (RCL).

United States District Court, District of Columbia.

December 17, 2007.

COPYRIGHT MATERIAL OMITTED

Anne L. Weismann, Washington, DC, for Plaintiff.

W. Scott Simpson, U.S. Department of Justice, Meredith Leigh Di Liberto, Jason B. Aldrich, Paul J. Orfanedes, Judicial Watch, Inc., Burt Alan Braverman, Davis Wright Tremaine, LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, District Judge.

INTRODUCTION

Plaintiff Citizens for Responsibility and Ethics in Washington (CREW), a nonprofit organization and self-described government watchdog, filed a Freedom of Information Act request with the United States Secret Service, a component of the United States Department of Homeland Security, for documents relating to nine individuals. CREW sought all records in the Secret Service's possession showing that any of these nine individuals, described as prominent "conservative Christian leaders," had recently visited the White House or the Vice President's Residence. "When the Secret Service failed to respond to this request in a timely fashion, CREW filed the present action under the Freedom of Information Act, the Federal Records Act, and the Administrative Procedure Act, challenging not only the Secret Service's failure to respond to its request but the Secret Service's policy of deleting certain White House visitor logs.

BACKGROUND

I.

Charged by federal statute with protecting the President and Vice-President of the United States and their immediate families, see 18 U.S.C. §§ 3056, 3056A (2007 Suppl.), the Secret Service monitors visitors to the White House Complex¹ and the Vice-President's Residence.² Neither the President nor the Vice-President may refuse this protection. As part of this mandatory duty, the Secret Service performs background investigations of individuals before they enter either area and supervises the entry and exit of each visitor as they make their scheduled visit. An assortment of records are created as the Secret Service performs these twin tasks. What follows is a description of the different types of records that are created at the White House Complex and the Vice-President's Residence, as well as a summary of the Secret Service's record retention practices.

A. The White House Complex

1. Document Creation

The Secret Service monitors visitors to the White House Complex using two interrelated electronic systems known as the Worker and Visitor Entrance System (WAVES) and the Access Control Records System (ACR). These two electronic systems are collectively known as the White House Access Control System (WHACS).3d Morrissey Decl. at ¶ 8. Both WAVES and ACR records are central to CREW's document request.

The process by which a visitor enters the White House Complex typically begins when an authorized White House pass holder—who may be (but is not always) a member of the President's or Vice-President's staff³ — notifies the Secret Service that an individual is scheduled to visit the Complex.3d Morrissey Decl. at ¶ 9. The White House pass holder, in notifying the Secret Service of the visit, provides the proposed visitor's identifying information, including his name, date of birth and social security number. In addition to this personal information, the White House pass holder will provide the time and location of the scheduled appointment, the name of the person submitting the request, the name of the recipient of the visitor, the date the request was made, and the type of visitor expected, e.g., member of the press or temporary worker. Id. at ¶ 10.

This information is usually transmitted to the Secret Service electronically via the White House Appointment Request Server. Id. at ¶ 11. The White House pass holder will enter the relevant information into the White House Appointment Request Server, which then automatically transmits the information to the WAVES Center. Upon receiving the visitor request, a member of the Secret Service verifies that the person who submitted the request is authorized to the make the requested appointment. Id. The Secret Service officer will then use the identifying information "to determine whether there is any protective concern with giving [the proposed] visitor access to the White House Complex for the meeting." Declaration of Claire M. O'Donnell at ¶ 12.⁴ Once the Secret Service officer has made "use of the information," the officer will "transmit[] the information electronically to the Secret Service's White House Access Control System." Id. Before transmitting the information, however, the Secret Service officer may add "additional information" to the visitor's file, such as the results of the background check.3d Morrissey Decl. at ¶ 11. In short, the Secret Service reviews and supplements the information it receives from the pass holder before transmitting it to the White House Access Control System.

Not all visitor requests are transmitted electronically via the White House Appointment Request Server. In some circumstances a White House pass holder may provide the information to the Secret Service by telephone, facsimile, e-mail, or by dropping off a list in-person, in which case a member of the Secret Service will manually enter the information into the Secret Service's system. Id. at ¶ 11. As with requests submitted electronically, the Secret Service uses the visitor's identifying information to perform a background check on the individual to determine whether he should be allowed to enter the White House Complex. This information is also used to verify the visitor's admission to the Complex at the time of the visit. Id. at ¶ 12.

A WAVES record consists of the information provided by the White House pass holder and any additional information, such as the results of the a background check, added by the Secret Service.3d Morrissey Decl. at ¶¶ 11, 13. Two fields, known as the "note field" and "comment field," may contain notations created solely by the Secret Service. For example, the Secret Service might indicate in these fields the results of its background check or coded instructions for its officers. These fields might also contain security information or indicate whether there are specific conditions on a visitor's admission to the Complex. Id. at ¶ 13. Each WAVES record is electronically stored on the Secret Service's computer servers.

When a visitor arrives at the White House Complex he is generally issued an entrance pass, which the visitor will "swipe" over the electronic pass readers that are located at the entrances and exits of the Complex.3d Morrissey Decl. at ¶ 14. An ACR record is automatically generated each time a pass holder swipes his pass. Each ACR record contains the entrant's name and badge number, the time and date of the entrance or exit, and the specific post at which the swipe was recorded. An ACR record does not indicate who the pass holder was visiting or who requested the visitor's entrance. Id. at ¶ 14. Once the visit has taken place, the WAVES record for the individual is updated electronically with the time and place of the visitor's entry and exit from the White House Complex. Id. at ¶ 15. This information is drawn from the ACR system.

In addition to the WAVES and ACR records, the. Secret Service also uses a record known as Secret Service Form 1888 (SSF 1888).3d Morrissey Decl. at ¶ 16. An SSF 1888 is created as part of the Secret Service's background investigation process for several categories of White House visitors, including temporary workers and individuals who have a criminal background or are thought to pose a potential security risk.⁵ Finally, there is a collection of documents which the Secret Service simply refers to as "Additional Security-Related Records." 3d Morrissey Decl. at ¶ 17. These are records that are created by the Secret Service as it conducts "additional background checks and other security-related activities regarding certain visitors, who are chosen by the Secret Service based on certain details in their backgrounds [or] the circumstances of their visits." Id. at ¶ 17.⁶

2. Record Retention Practices

The Secret Service's past retention practices for WAVES and ACR records have proven to be pliant and evolving. Paul Morrissey, the Deputy Assistant Director of the Office of Protective Operations, declares that every 30 to 60 days the Secret Service will copy the WAVES records stored on the Secret Service's "servers" to a compact disc (CD-ROM).3d Morrissey Decl. at ¶ 18. After making a copy of the records, the Secret Service transfers the CD-ROM containing the WAVES records to the White House Office of Records Management (WHORM). Id. at ¶ 18. A WHORM employee "typically signs a form acknowledging receipt of the records." Id. After delivering the CD-ROM to the WHORM, the Secret Service erases the WAVES records "from its computer system." Id. The Secret Service's practice of purging and overwriting WAVES records that are "older than 60 days" occurred from "at least 2001" until "November 2004." Id. at ¶¶ 18-19.⁷ This practice ended abruptly in November 2004, at the "request" of the National Archives and Records Administration.⁸ Id. at ¶ 19. From this point until the present, the Secret Service has begun "temporarily retaining a copy"⁹ of the WAVES records that its transfers to the WHORM. Id.

Although it has been the practice of the Secret Service to transfer WAVES records to the WHORM, the Secret Service has not always transferred the entire WAVES record. Prior to July 2006, "the Secret Service was removing the note and comment fields from the WAVES records before transferring the records to the WHORM." 3d Morrissey Decl. at ¶ 18. The note and comment fields, as explained above, contain notions created by the Secret Service, such as the results of the Secret Service's background investigation....