Judicial Watch, Inc. v. U.S. Secret Service, Civil Action No. 06-310 (RCL).

• Decision Date: 30 September 2008
• Docket Number: Civil Action No. 06-883(RCL).,Civil Action No. 06-310 (RCL).
• Parties: JUDICIAL WATCH, INC., Plaintiff, v. UNITED STATES SECRET SERVICE, Defendant. Citizens for Responsibility and Ethics in Washington, Plaintiff, v. U.S. Department of Homeland Security, Defendant.
• Court: U.S. District Court — District of Columbia

579 F.Supp.2d 143

JUDICIAL WATCH, INC., Plaintiff, v. UNITED STATES SECRET SERVICE, Defendant.

Citizens for Responsibility and Ethics in Washington, Plaintiff, v. U.S. Department of Homeland Security, Defendant.

Civil Action No. 06-310 (RCL).

Civil Action No. 06-883(RCL).

United States District Court, District of Columbia.

September 30, 2008.

COPYRIGHT MATERIAL OMITTED

Paul J. Orfanedes, Jason B. Aldrich, Meredith Leigh Di Liberto, Judicial Watch, Inc., Washington, DC, for Plaintiff, Judicial Watch, Inc.

Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, Sharon Yvette Eubanks, Holland & Knight LLP, Washington, DC, for Plaintiff, Citizens for Responsibility and Ethics in Washington.

Justin M. Sandberg, U.S. Department of Justice, Washington, DC, for Defendants, United States Secret Service, U.S. Department of Homeland Security.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

Presently before the Court are two motions: plaintiff Judicial Watch, Inc.'s Motion [12] to Compel Defendant United States Secret Service to Comply with this Court's Order and for Sanctions; and defendant United States Secret Service's Motion [14] to Dismiss plaintiff Judicial Watch, Inc.'s suit for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The Court concludes that the Secret Service has complied fully with the Court's order (the Stipulated Agreement). However, by searching only the subset of records in its physical possession at the time of the request, the Secret Service has not fully complied with Judicial Watch's FOIA request.

I. BACKGROUND

A. Procedural Posture

Plaintiff Judicial Watch, Inc. made a Freedom of Information Act ("FOIA") request of defendant United States Secret Service on January 20, 2006.¹ Plaintiff requested "[a]ll White House visitor logs from January 1, 2001 to present that reflect the entries and exit(s) of lobbyist Jack Abramoff from the White House." (Compl.1.) After defendant did not release any records within the time period provided by FOIA, plaintiffs filed suit on February 22, 2006. On April 25, 2006, the parties entered into a stipulated agreement wherein defendant agreed to produce "any and all documents responsive to Plaintiff's . .. request, without redactions or claims of exemption," by May 10, 2006. (Joint Stipulation and Agreed Order 1.) After querying the two records systems it considered relevant—Access Control Records System ("ACR") records and Workers and Visitors Entry System ("WAVES") records—defendant released two ACR records on May 10, 2006, and stated that there were no more responsive records. Plaintiff moved to compel compliance with the Stipulated Agreement and for sanctions on May 16, 2006. Defendant moved to dismiss that same day.

While both motions were pending, defendant discovered that additional WAVES records predating October 2004 had been inadvertently retained on two Secret Service computers used to transfer WAVES records to CD-ROM. (2d Lyerly Decl. ¶ 3 (July 7, 2006).) Defendant then had an internal team search those computers for additional WAVES files. (Id. ¶¶ 4-8.) That search yielded six additional responsive WAVES records (id. ¶ 9), which defendant released to plaintiff on July 7, 2006. Both parties have addressed the July 2007 disclosure in their filings.

B. Background on ACR Records and WAVES Records

1. ACR Records

"ACR records consist of records generated when a pass holder, worker, or visitor swipes his or her permanent or temporary pass over one of the electronic pass readers located at entrances to and exits from the White House Complex. ACR records include information such as the pass holder's name and badge number, the time and date of the swipe, and the post at which the swipe was recorded." (Lyerly Decl. ¶ 7 (May 16, 2006).) ACR records are not created for every White House entrant, but only for those who pass through a turnstile with an electronic pass reader. (See id. ¶ 16.) ACR records are stored in a electronic database searchable by visitor name. (Id. ¶ 12.)

2. WAVES Records

"WAVES records consist of records generated when information is submitted to the Secret Service about workers and visitors whose business requires their presence at the White House Complex. WAVES records include information additional to that in the ACR records." (Id. ¶ 8.) Before they are transferred to CD-ROM, WAVES files are stored on a server. (2d Lyerly Decl. ¶ 10 (July 7, 2006).) Thirty to sixty days after the visit, the records are transferred to individual agency computers, from which they are transferred to CD-ROMs (id.), which are searchable by visitor name (Lyerly Decl. ¶ 13 (May 16, 2006)). Prior to October 2004, the Secret Service had a "longstanding practice" of transferring those CD-ROMs to the White House, after which the transferred records were deleted from the Secret Service's system. (Id. ¶ 10.) As a result, at the time of plaintiff's FOIA request defendant only possessed WAVES records dating back to October 2004. (Id. ¶ 11.)

II. ANALYSIS: MOTION TO COMPEL

Plaintiff moves to compel compliance on the argument that defendant breached the Stipulated Agreement in both its initial May 10, 2006 disclosure (two ACR records) and its July 7, 2006 disclosure (six WAVES records).² The Court disagrees as to both allegations.

A. The May 10 Disclosure

The May 10, 2006 disclosure consisted of two ACR records and zero WAVES records. Plaintiff claims that defendant withheld responsive records, thus violating the Agreement. Plaintiff argues that because that disclosure does not reflect several publicly acknowledged Abramoff visits, defendant must be withholding responsive records. The Court does not consider defendant's May 10 disclosure to be a violation of the Agreement.

As to ACR records, defendant's affidavits indicate that it has complied with plaintiff's FOIA request and the Stipulated Agreement. Representations in newspaper stories or elsewhere of other Abramoff visits do not prove the existence of undisclosed ACR records, as ACR records are not created for every single White House visitor.³ (See Lyerly Decl. ¶ 16 (May 16, 2006).) As to WAVES records, defendant has not fully complied with plaintiff's FOIA request (as discussed later in this opinion). However, at the time of the May 10 disclosure, defendant had a colorable argument that once WAVES records were transferred to the White House and internally deleted, they were no longer Secret Service records subject to plaintiff's request. This opinion rejects that argument, based in part on recent precedent. See Citizens for Responsibility and Ethics in Washington v. Dep't of Homeland Security, 527 F.Supp.2d 76 (D.D.C.2007) (Lamberth, J.). However, justice would not be served by punishing defendant for what at that time may well have been a good-faith interpretation of the Stipulated Agreement.

B. The July 7 Disclosure

Plaintiff makes two breach claims specific to the records released on July 7, 2006:(1) that defendant impermissibly redacted Abramoff's date of birth and social security number, and (2) that defendant impermissibly redacted information by "scratching out" one visit on the paper "summary" of WAVES records from defendant's hard drives. The Court considers the redaction of date of birth and social security number to be harmless and not material. The scratching out of part of the summary, while confusing, does not breach the Agreement because the summary itself did not exist at the time of the Agreement.

The redaction of Abramoff's date of birth and social security number was not a material breach of the Stipulated Agreement. The information that plaintiff seeks is not Abramoff's personal details, but rather records of his White House visits. That fact, combined with the obvious privacy considerations, support the conclusion that this redaction was not a material breach.

Neither is the scratching-out on the summary page a breach of the Agreement. (See Reply in Support of Mot. to Dismiss Ex. 4.) (Although the lines are scratched through, they are still partially legible.) Defendant explains that this record had been scratched out "because it appeared to be a duplicate of the first listing of appointment data on that same page." (2d Lyerly Decl. ¶ 13 (July 7, 2007).) Judging by the "UIN" field, the appointment date, and the appointment start and end times⁴ —all of which are still legible—defendant appears to be correct. But, more importantly, the scratched-out portion was merely part of a summary of responsive records drawn from defendant's hard drives. (See id.) That summary cannot fairly be considered a "responsive record" subject to the Stipulated Agreement: it was created during the post-Agreement hard-drive search, and thus did not even exist at the time of the Agreement. Moreover, defendant has provided the actual records themselves, including the one corresponding with the scratched-out summary lines, and additional data on the records. (See Reply in Support of Mot. to Dismiss Exs. 2, 3 (WAVES record with UIN "U70552," appointment date "12/10/2001," appointment start time "5:30:00 PM," and appointment end time of "7:30:00 PM").) But the fact that the summary did not exist at the time of either the FOIA request or the Stipulated Agreement is enough to put this redaction outside the Agreement's reach.

III. ANALYSIS: MOTION TO DISMISS

A. Legal Standard

The mootness doctrine compels federal courts to dismiss an action for lack of subject matter jurisdiction if there is no ongoing case or controversy. In FOIA cases, there remains no case or controversy if the defendant agency has already fully complied with the plaintiff's information request, and the action can be dismissed.⁵ See Tijerina v. Walters, 821 F.2d 789, 799 (D.C.Cir.1987) ("[I]f we are convinced [the agency has], however belatedly, released all nonexempt material, we have no further judicial function to perform under the FOIA.") (quoting Perry v. Block, 684...