Doyle v. U.S. Dep't of Homeland Sec.

• Citation: 331 F.Supp.3d 27
• Decision Date: 26 July 2018
• Docket Number: 17 Civ. 2542 (KPF)
• Parties: Kate DOYLE, National Security Archive, Citizens for Responsibility and Ethics in Washington, and Knight First Amendment Institute at Columbia University, Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY and Executive Office of the President, Defendants.
• Court: U.S. District Court — Southern District of New York

331 F.Supp.3d 27

Kate DOYLE, National Security Archive, Citizens for Responsibility and Ethics in Washington, and Knight First Amendment Institute at Columbia University, Plaintiffs,

v.U.S. DEPARTMENT OF HOMELAND SECURITY and Executive Office of the President, Defendants.

17 Civ. 2542 (KPF)

United States District Court, S.D. New York.

Signed July 26, 2018

Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, Washington, DC, Alexander Abraham Abdo, Knight First Amendment Institute at Columbia University, New York, NY, for Plaintiffs.

Brad P. Rosenberg, Elizabeth J. Shapiro, U.S. Department of Justice, Washington, DC, Sarah Sheive Normand, Casey Kyung-Se Lee, United States Attorney's Office, New York, NY, for Defendants.

OPINION AND ORDER

KATHERINE POLK FAILLA, United States District Judge

Plaintiffs Kate Doyle, National Security Archive ("NSA"), Citizens for Responsibility and Ethics in Washington ("CREW"), and Knight First Amendment Institute (collectively, "Plaintiffs") initiated this action against the United States Department of Homeland Security ("DHS") and the Executive Office of the President ("EOP," and with DHS, "Defendants"), after Doyle unsuccessfully attempted to obtain, under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, records related to visitors of President Trump at the White House Complex, as well as at his properties at Trump Tower, in New York, and Mar-a-Lago, in Florida. The operative complaint brings claims under FOIA, the Administrative Procedure Act ("APA"), 5 U.S.C. ch. 5, the Federal Record Act ("FRA"), 44 U.S.C. §§ 2102 - 2118, 2901 - 2910, 3101 - 3107, 3301 - 3324, and the Presidential Records Act ("PRA"), 44 U.S.C. §§ 2201 - 2209 ; it seeks injunctive relief and, under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 - 2202, declaratory relief.

Defendants have moved for summary judgment on Plaintiffs' FOIA claims and to dismiss the remainder of Plaintiffs' claims for lack of subject matter jurisdiction and, alternatively, for failure to state a claim. For the reasons that follow, the Court grants in part and denies in part Defendants' motion for summary judgment, and grants Defendants' motion to dismiss in full.

BACKGROUND¹

A. Factual Background

1. The Parties

a. The Plaintiffs

"Plaintiff [NSA] is an independent, non-governmental, non-profit research institute organized under section 501(c)(3) of the Internal Revenue Code." (Am. Compl. ¶ 5). The NSA obtains government documents through FOIA, and "collects, analyzes, and publishes" them "to enrich scholarship and journalism ..., and to promote openness and government accountability." (Id. ). Plaintiff Kate Doyle is a senior analyst focusing on United States policy in Latin America, who works in NSA "to open and analyze government files, including through the use of the FOIA." (Id. at ¶ 4).

"Plaintiff CREW is a non-profit, non-partisan organization organized under section 501(c)(3) of the Internal Revenue Code." (Am. Compl. ¶ 6). CREW advocates for government openness and accountability through "a combination of research, litigation, and advocacy." (Id. ). A similar operation, Plaintiff Knight First Amendment Institute at Columbia University is a New York not-for-profit corporation seeking "to preserve and expand the freedoms of speech and the press" through "litigation, research, and public education." (Id. at ¶ 7). Both organizations utilize FOIA requests in furtherance of their missions. (See id. at ¶¶ 6-7).

b. The Defendants

DHS is a federal agency that includes, as one of its components, the United States Secret Service, which is required by statute to provide security to the President and Vice President. See 18 U.S.C. §§ 3056(a)(1), 3056A(a)(4). Acceptance of the Secret Service's protection is mandatory for the President, Vice President, President-elect, and Vice President-elect. See Judicial Watch, Inc. v. U.S. Secret Serv. , 726 F.3d 208, 211 (D.C. Cir. 2013) (citing Pub. L. No. 98-587, 98 Stat. 3110 (1984) )(codified at 18 U.S.C. § 3056(a) ). (See also Murray Decl. ¶ 3). The Secret Service's protection also extends to the edifices associated with the offices of the President and Vice President. See 18 U.S.C. § 3056A(a).

The Executive Office of the President (the "EOP") comprises various bodies, including the White House Office, which, in turn, includes the President's immediate staff, the White House Counsel's Office, and the Staff Secretary's Office. (Herndon Decl. ¶ 2). The EOP also encompasses the Council on Environmental Quality ("CEQ"); the Office of Management and Budget ("OMB"); the Office of National Drug Control Policy ("ONDCP"); the Office of Science and Technology Policy ("OSTP"); and the Office of the United States Trade Representative ("USTR"). (Am. Compl. ¶ 9).

2. Records of Presidential Visitors

Plaintiffs seek from the DHS records maintained by the Secret Service spanning the period of January 20, 2017, through March 8, 2017, related to visits to the White House and to President Trump at his Mar-a-Lago and Trump Tower residences. (See Am. Compl. ¶¶ 1, 34, 39). DHS contends that although the security responsibility of the Secret Service extends to the White House Complex, it "does not have a similar statutory authority to protect Mar-a-Lago or Trump Tower." (Murray Decl. ¶ 3). The declarations that DHS has submitted in support of its motions thus focus on the policies and procedures attendant to records of White House Complex visitors, and this section summarizes those guidelines.

a. Records of White House Complex Visitors

In order to vet, identify, and monitor visitors to the White House Complex, the Secret Service employs two interconnected electronic systems: (i) the Executive Facilities Access Control System ("EFACS"), through which the Secret Service controls and monitors White House Complex access; and (ii) the Worker and Visitor Entrance System ("WAVES"), which the Secret Service uses to vet visitors to the White House Complex. (Murray Decl. ¶¶ 6-7).

Authorized White House Complex passholders may request permission for a visitor to the White House Complex by providing visitor information to the Secret Service through a system called "Appointment Center" or the "WAVES Request System" ("WRS"). (Murray Decl. ¶ 8). Through these systems, WAVES gathers information related to prospective visitors, which information allows a Secret Service member to verify that the requestor is authorized to make appointments for the location requested, to acquire additional information, to conduct a background check, and to transmit the information to the EFACS server. (Id. ). WAVES records include a variety of information fields, such as whether a visit is related to a certain event at the White House Complex or is subject to certain restrictions. (Id. at ¶ 9).

When an individual receives approval to visit the White House Complex, he or she typically receives a badge to "swipe" over electronic badge readers located at entrances and exits to the White House Complex; each swipe generates an "Access Control Record" ("ACR") within the EFACS system. (Murray Decl. ¶ 10). An ACR contains information such as the visitor's name, and the date, time, and location at which the ACR was generated, which, "[o]nce a visit takes place," is integrated into the WAVES records. (Id. at ¶¶ 10-11). These aggregated records contain information identifying the visitor, visitee, and individual who made the appointment; as well as details of the visit, such as the points of entry and departure, the type of escort the visit requires, and whether the visit involved a highly sensitive meeting. (Willson Decl. ¶ 7). This dispute principally revolves around WAVES and ACR records.

b. Recordkeeping Practices Related to WAVES and ACR Records

DHS contends that because the Secret Service utilizes WAVES records to vet potential visitors and verify visitors' admissibility at the time of a visit, the Secret Service ceases to have an interest in maintaining such information after the completion of a visit. (See Murray Decl. ¶¶ 8, 13). Thus, "[s]ince at least 2001," the Secret Service has maintained a practice of transferring WAVES records to the White House Office of Records Management ("WHORM") "generally every 30 to 60 days." (Id. at ¶ 13; see also Droege Decl. ¶ 4). "[A]s early as 2001," the White House and Secret Service agreed that ACR records "should be treated in a manner generally consistent with WAVES records," and thus, "[s]ince at least 2006," the Secret Service has transferred ACR records to the WHORM every 30 to 60 days. (Droege Decl. ¶ 5).

"[S]ince at least 2009," the Secret Service has transferred WAVES records to WHORM every 30 days. (Murray Decl. ¶ 13; see also Willson Decl. ¶ 5; Droege Decl. ¶ 4). After transferring the records, "[i]t is the intent of the Secret Service" that the records "be erased from [their] computer system," and WAVES records over 60-days old are normally "auto-deleted" and "overwritten on the servers." (Murray Decl. ¶ 13; see also Willson Decl. ¶ 6 ("Records that are older than 60 days are ordinarily auto-deleted from the server operated by the Secret Service on a rolling basis.") ).² "Currently, the after-visit records that are transferred to the WHORM constitute a combination of WAVES and ACR information." (Murray Decl. ¶ 15).

In May 2006, the Secret Service Records Management Program and WHORM entered into a Memorandum of Understanding (the "2006 MOU"), which reflected the above practices regarding WAVES and ACR records. (See Murray Decl. ¶ 14; Droege Decl. ¶ 6). The 2006 MOU also expressed the Secret Service's and WHORM's understanding that such records "are at all times Presidential Records," "are not Federal Records," and "are not the records of an ‘agency’ subject to the Freedom of Information Act[.]" (Murray Decl., Ex. A at ¶ 17). The 2006 MOU also provided that (i) such records "are at all times under the exclusive legal custody and control of the White House"; (ii) only the White House has a "continuing...