Doyle v. United States Department of Homeland Security, 051820 FED2, 18-2814-cv
|Opinion Judge:||LOHIER, CIRCUIT JUDGE.|
|Party Name:||KATE DOYLE, NATIONAL SECURITY ARCHIVE, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant-Appellee.|
|Attorney:||Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, Washington, D.C. (Conor M. Shaw, Citizens for Responsibility and Ethics in Washington, Washington, D.C., Alexander Abdo, Jameel Jaffer, Knight First Amendment Institute at Columbia University, New York, NY, on the brief), for...|
|Judge Panel:||Before: CALABRESI, LOHIER, and PARK, Circuit Judges.|
|Case Date:||May 18, 2020|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued: September 23, 2019
This appeal involves a Freedom of Information Act (FOIA) request to the Secret Service seeking visitor logs for the White House Complex and President Trump's Mar-a-Lago home in Florida from January 20, 2017 to March 8, 2017. The Secret Service denied the request, claiming that the visitor logs were not "agency records" subject to FOIA. The District Court (Failla, J.) agreed with the Secret Service and refused to compel production of the withheld records. The District Court also dismissed for want of subject-matter jurisdiction the plaintiffs' claims that an agreement between the Secret Service and the Executive Office of the President that allegedly governed the maintenance of the visitor logs violated the Presidential Records Act and the Federal Records Act. We AFFIRM the District Court's judgment and DENY the plaintiffs' request on appeal to amend their complaint.
Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, Washington, D.C. (Conor M. Shaw, Citizens for Responsibility and Ethics in Washington, Washington, D.C., Alexander Abdo, Jameel Jaffer, Knight First Amendment Institute at Columbia University, New York, NY, on the brief), for Plaintiffs-Appellants Kate Doyle, National Security Archive, Citizens for Responsibility and Ethics in Washington, Knight First Amendment Institute at Columbia University.
Sarah S. Normand, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Defendant-Appellee United States Department of Homeland Security.
Before: CALABRESI, LOHIER, and PARK, Circuit Judges.
LOHIER, CIRCUIT JUDGE.
In this appeal we principally consider whether certain visitor logs for the White House Complex and the President's Mar-a-Lago home in Florida are "agency records" subject to the Freedom of Information Act (FOIA). The plaintiffs, all but one of whom are government watchdog groups of one form or another, filed a request with the Secret Service, a component of the Department of Homeland Security (DHS), seeking visitor logs from January 20, 2017 to March 8, 2017. The Secret Service denied the request and withheld the logs, claiming that they were not agency records under FOIA. The plaintiffs sued in federal court and moved to compel production of the withheld records, but the United States District Court for the Southern District of New York (Failla, J.) agreed with the Secret Service that the logs were not agency records and accordingly denied the plaintiffs' motion. The District Court also dismissed for lack of subject-matter jurisdiction the plaintiffs' separate claims under the Presidential Records Act (PRA) and the Federal Records Act (FRA) challenging an agreement between the Secret Service and the Executive Office of the President (EOP) that allegedly governed how the visitor logs were to be maintained.
For the following reasons, we AFFIRM the District Court's judgment and DENY the plaintiffs' request on appeal to amend their complaint.
a. Records of Visitors to the White House Complex
In order to protect the President, the Secret Service monitors and controls access to the White House Complex, see 18 U.S.C. §§ 3056A(a)(1)-(2), 3056(a)(1), using two electronic systems. It uses the first system, known as the Worker and Visitor Entrance System (WAVES), to vet potential visitors and to determine which portions of the White House Complex they can access. It uses the second system, known as the Executive Facilities Access Control System (EFACS), to control how visitors access the White House Complex once they arrive.
To operate these systems, the Secret Service needs to know who is visiting the White House Complex and when. So White House Complex employees notify the Secret Service of anticipated visitors and provide the Secret Service with personal information about each prospective visitor so that it can determine whether and under what conditions that visitor should be admitted. This information is stored in WAVES and includes the visitor's name, date of birth, and Social Security number; the date, time, and location of the planned visit; the name of the White House Complex employee who notified the Secret Service of the impending visit; and the name of the person to be visited.
When a visitor arrives, the Secret Service issues a badge that the visitor is required to swipe to enter and exit the White House Complex's various components. Each swipe generates an Access Control Record (ACR) within EFACS that captures the visitor's name, badge number, the date and time of the swipe, and the location at which the badge was swiped. A visitor's ACRs thus show (or should show) the visitor's principal interactions with components of the White House Complex.
The Secret Service claims only a temporary interest in the ACR and WAVES records. Instead of retaining them, it routinely transfers the records of completed visits to the White House Office of Records Management. In 2015 the Secret Service and the White House sought to clarify their respective roles with respect to these records and to establish a framework for implementing policies and procedures governing both the WAVES and EFACS systems as well as the records within those systems. That year, the Secret Service and a component of the White House therefore executed a Memorandum of Understanding (2015 MOU), which stated in relevant part that: All records created, stored, used, or transmitted by, on, or through the unclassified information systems and information resources provided to the President, Vice President, and EOP shall remain under the exclusive ownership, control, and custody of the President, Vice President, or originating EOP component. Such records are hereinafter referred to as "EOP records."
Joint App'x 96. Although the parties contest how to interpret the 2015 MOU, all agree that it purports to vest control of ACR and WAVES records in the President and away from the Secret Service, leaving the Secret Service merely to manage and operate the WAVES and EFACS systems.
b. Documents Related to Mar-a-Lago
The Secret Service had no comparable systems in place to screen or monitor presidential visitors to the President's Mar-a-Lago or Trump Tower homes. Nevertheless, in searching for records responsive to the plaintiffs' FOIA requests, the Secret Service managed to locate three categories of responsive documents related to Mar-a-Lago: first, copies of the President's schedules for certain days; second, emails between Secret Service members containing those schedules; and third, emails from the White House about expected visitors to Mar-a-Lago.
c. The FOIA requests
On January 23, 2017, prior to the commencement of this case, one of the plaintiffs, Kate Doyle, sent to the Secret Service a FOIA request seeking all ACR and WAVES records created between January 20 to January 22, 2017. After a month passed without response, Doyle sent an administrative appeal of her request to the Secret Service. A few weeks later, on March 10, the plaintiffs collectively sent to the Secret Service a FOIA request seeking all ACR and WAVES records from January 20, 2017 until March 8, 2017, and all records of presidential visitors at Mar-a-Lago and Trump Tower in New York over the same time period. The Secret Service again failed to respond within the timeframe set forth in FOIA.
2. Procedural History
The plaintiffs filed this lawsuit in April 2017. They alleged that DHS (in effect, the Secret Service) unlawfully withheld the requested visitor logs in violation of FOIA, 5 U.S.C. § 552, and that the agency's failure to treat ACR and WAVES records as subject to FOIA violated both the FRA, 44 U.S.C. §§ 2101, et seq., 3101, et seq., 3301, et seq., and the PRA, 44 U.S.C. § 2201 et seq.
DHS filed a Rule 56 motion for summary judgment on the plaintiffs' FOIA claims and a Rule 12(b) motion to dismiss the PRA and FRA claims for lack of subject-matter jurisdiction or, in the alternative, for failure to state a claim. The District Court granted in part and denied in part the motion for summary judgment and granted the motion to dismiss in its entirety. It concluded, as relevant here, that the visitor logs for Mar-a-Lago and the presidential components of the White House Complex were not "agency records" subject to disclosure under FOIA and that it lacked subject-matter jurisdiction over the FRA and PRA claims.
This appeal followed.
During the litigation DHS disclosed the requested visitor logs for the agency components of the White House Complex, but it refused to do so for the White House Complex's presidential components. See Main St. Legal Servs., Inc. v. Nat'l Sec. Council, 811 F.3d 542, 547 (2d Cir. 2016) (distinguishing agency components, which possess "substantial independent authority" from the President and "exercise . . . specific functions" beyond "advis[ing] and assist[ing] the President," from presidential components, which "sole[ly] . . . advise and assist the President" (quotation marks omitted)). What remains at issue on appeal, therefore, are only the ACR and WAVES records for presidential components and the presidential schedule documents for Mar-a-Lago discussed above.
As to these materials, the plaintiffs press two main arguments on appeal. First, relying on United...
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