Citizens for Responsibility and Ethics in Washington v. U.S. Department of Homeland Security ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON, )
)
Plaintiff, )
)
v. ) Civil Action No. 06-1912 (RCL)
)
U.S. DEPARTMENT OF )
HOMELAND SECURITY, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
This matter comes before the Court on two sets of filings: the parties’ cross Motions ([64]
and [68]) for Summary Judgment on Claims One and Two; and plaintiff’s Motion [51] for
Summary Judgment on Claims Three and Four. Plaintiff Citizens for Responsibility and Ethics
in Washington (“CREW”) is suing the U.S. Department of Homeland Security (“DHS”) and
Adrienne Thomas, Acting Archivist of the United States (“Archivist”).1 Plaintiff articulates
FOIA claims against DHS (Claims One and Two) and Federal Records Act (“FRA”) claims
against both DHS and the Archivist (Claims Three and Four).
On Claims One and Two, the Court will deny defendants’ motion [64] and grant
plaintiff’s motion [68]. As for Claims Three and Four, the Court will grant in part and deny in
1
On December 19, 2008, then-Archivist Allen Weinstein resigned from the office. In
accordance with Federal Rule of Civil Procedure 25(d), his successor, Acting Archivist Adrienne
Thomas, is automatically substituted as a party.
1
part plaintiff’s motion [51] for summary judgment. Because the facts relevant to the FOIA
claims are different than those relevant to the FRA claims, this opinion contains a separate
factual background for each set of claims.
I. CLAIMS ONE AND TWO (FOIA CLAIMS)
A. Factual and Procedural Background
In October 2006, plaintiff made a FOIA request of DHS seeking records of visits by nine
named individuals to either the White House or the Vice President’s residence (“VPR”).
(Compl. Ex. A.) The Secret Service, a component of defendant, creates various types of records
associated with visitors to either the White House complex or the VPR. The main records of
visitors to the White House are Access Control Records System (“ACR”) records and Worker
and Visitor Entrance System (“WAVES”) records. Other security-related records are also
maintained. VPR visit records include post entry logs (handwritten entry records), permanent
and daily access lists (clearance lists for regular visitors and specific visitors, respectively), event
lists (clearance lists for particular events), and e-mails requesting access to VPR.2 The sought
records contained information such as the visitor’s name, date of visit, and in some cases the
person visited.3 After DHS failed to fulfill plaintiff’s request within the time allowed by FOIA,
plaintiff filed suit. (Compl.)
2
The nine individuals were James Dobson, Gary L. Bauer, Wendy Wright, Louis P.
Sheldon, Andrea Lafferty, Paul Weyrich, Tony Perkins, Donald Wildmon, and Jerry Falwell.
3
Further details of the records—not directly relevant to the motions on FOIA claims—are
discussed below in part II and in an earlier decision in this case, CREW v. DHS, et al., 527 F.
Supp. 2d 76 (D.D.C. 2007).
2
In December 2007, this Court denied defendants’ Motion [29] for Summary Judgment.
CREW v. DHS, et al., 527 F. Supp. 2d 76 (D.D.C. 2007). That opinion established that the
records sought by plaintiff, including certain records that had been transferred out of the agency,
were in fact subject to FOIA. Id. at 98. Defendants appealed that decision, and the D.C. Circuit
dismissed the appeal for lack of jurisdiction in July 2008. 532 F.3d 860 (D.C. Cir. July 11,
2008). In September, defendants filed with the Court a letter sent by DHS to plaintiff. (Defs.’
Notice of Filing (Amended) [57] (Sept. 25, 2008).) The notice and letter indicated that DHS did
not plan to release any records responsive to plaintiff’s FOIA request because, among other
reasons, any such records would fall under the “presidential communications privilege” and were
therefore protected from disclosure by FOIA Exemption 5. (Id.) In connection with that
position, DHS indicated that it would neither confirm nor deny the existence of any responsive
records, as withholding some records but not others would reveal the identities of persons
engaged in confidential communications with the President or his advisors. (Id.; see also Defs.’
Mot. at 2–3, 11–12.)
Defendants filed their motion thereafter, which makes the same claim as to the extent of
the presidential communications privilege. Plaintiff responded with its own cross-motion for
summary judgment, contesting defendants’ claim and arguing that DHS has not yet performed an
adequate search as required by FOIA.
3
B. Legal Framework
1. FOIA Exemption 5, the Presidential Communications Privilege, and the “Glomar
Response”
Exemption 5 protects from FOIA’s disclosure requirements “inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than an agency in
litigation with the agency.” 5 U.S.C. § 552(b)(5). This language has been construed as covering
materials “normally privileged in the civil discovery context.” N.L.R.B. v. Sears, Roebuck & Co.,
421 U.S. 132, 149 (1975).
One such civil discovery privilege is the presidential communications privilege. “[T]here
is ‘a presumptive privilege for Presidential communications,’ which is ‘fundamental to the
operation of Government and inextricably rooted in the separation of powers under the
Constitution.’” Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1113 (D.C. Cir. 2004)
(quoting U.S. v. Nixon, 418 U.S. 683, 708 (1974)). The privilege protects “documents or other
materials that reflect presidential decisionmaking and deliberations and that the President
believes should remain confidential.” In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir. 1997).
The privilege extends not only to direct communications with the President, but also “to
communications authored or solicited and received by those members of an immediate White
House advisor’s staff who have broad and significant responsibility for investigating and
formulating the advice to be given to the President on a particular matter.” Id. at 757.
Courts have recognized that in some cases an agency claiming a FOIA exemption can
also refuse to either confirm or deny the existence of responsive records—a so-called “Glomar
response.” See Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) (approving such a response by
4
the CIA regarding the secret “Glomar Explorer” vessel). Such a response is appropriate “where
to answer the FOIA inquiry [as to the existence or nonexistence of responsive records] would
cause harm cognizable under an FOIA exception.” Gardels v. CIA, 689 F.2d 1100, 1003 (D.C.
Cir. 1982).
2. Legal Standard for Summary Judgment
Summary judgment should be granted when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The party
seeking summary judgment bears the initial burden of production as to the absence of genuine
issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine issue of
material fact exists if the evidence, viewed in the light most favorable to the nonmoving party,
“is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). But a genuine issue requires more than “a
scintilla of evidence” supporting the nonmoving party; “there must be evidence on which the jury
could reasonably find” for the nonmoving party. Id. at 252.
The operative question for summary judgment motions in FOIA cases is whether the
agency has executed a search “reasonably calculated to uncover all relevant documents.”
Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). Summary judgment
can be awarded based on information provided by the agency in affidavits or declarations.
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Agency affidavits or
declarations establishing the adequacy of a search must be “relatively detailed and non-
5
conclusory.” SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Such affidavits or
declarations “are accorded a presumption of good faith.” Id. “An agency must demonstrate that
‘each document that falls within the class requested either has been produced, is unidentifiable,
or is wholly exempt from the Act’s inspection requirements.’” Long v. Dep’t of Justice, 450 F.
Supp. 2d 42, 54 (citing Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and
quotation omitted)). If the agency claims that a document is exempt from disclosure, the agency
bears the burden of showing that the claimed exemption applies. See 5 U.S.C. § 552(a)(4)(B);
U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989).
C. Analysis
In order to prevail on its motion, defendant must show that it has conducted an adequate
search and that any responsive records it has withheld are covered by an applicable FOIA
exemption. If defendant cannot make that showing, plaintiff will prevail on its cross-motion for
summary judgment.
1. Adequacy of DHS’s Search
As a preliminary matter, unless defendant’s privilege claim prevails, defendant has not
conducted an adequate search for responsive records. As plaintiff notes, DHS’s September 2008
letter indicated that DHS had searched “records currently retained by the Secret Service,” the
Secret Service being a component of DHS. (Defs.’ Notice of Filing (Amended) [57] Ex. (Sept.
25, 2008).) The letter did not indicate that records not currently retained by the Secret Service
6
had been searched.4 But this Court has already held that visit records remain under the legal
“control” of DHS—and are thus subject to FOIA—even if they are transferred to the White
House or the Office of the Vice President and deleted from DHS’s internal files. CREW v. DHS,
527 F. Supp. 2d at 98. Until DHS executes a search of all agency records, including those
records which may not be “currently retained” by the agency, it has not fulfilled its obligation
under FOIA to execute a adequate search.
2. Applicability of the Presidential Communications Privilege to Records at Issue
The more substantial issue presented by these motions is whether the presidential
communications privilege extends far enough to cover the identities of visitors to the White
House and the Vice President’s residence. If it does, then all of the records sought by plaintiff
are exempt from FOIA, and DHS has no disclosure obligations related to plaintiff’s FOIA
request. If it does not, then DHS remains obligated under FOIA to produce the requested
records. The Court concludes here that the presidential communications privilege does not
extend as far as defendants claim and, accordingly, will deny defendants’ motion and grant
plaintiff’s motion.5
Defendants contend that the D.C. Circuit in In re Sealed Case suggested that the
4
Even if the letter had reflected as much, that would not be enough to prevail on a motion
for summary judgment; as already noted, agency declarations or affidavits are required to
establish the adequacy of an agency search. See SafeCard Servs., 926 F.2d at 1200.
5
Because the records sought by plaintiff are not covered by the presidential
communications privilege, the Court need not address plaintiff’s contention that the privilege
was improperly invoked. (See Pl.’s Mot. at 15–17 (claiming that the President did not delegate to
Justice Department counsel the ability to invoke the privilege).)
7
presidential communications privilege should extend to the identities of all sources of
information used by the President or presidential advisors. Defendants point to language in the
opinion that, when read out of context, might lead to that conclusion. (See Defs.’ Mot. at 6
(“‘[W]ithout protection for her sources of information, an advisor may be tempted to forego
obtaining comprehensive briefings or initiating deep and intense probing . . . .’” (quoting In re
Sealed Case, 121 F.3d at 750) (emphasis added by defendants)).) However, defendants’ position
is unconvincing for two reasons. First, read as a whole, In re Sealed Case does not advocate
such a broad interpretation of the presidential communications privilege. Second, such an
interpretation in the context of plaintiff’s FOIA action would undermine the purpose of FOIA
while providing little or no additional confidentiality to the President’s deliberations or
decisionmaking.
Defendant’s interpretation of In re Sealed Case rings hollow when the opinion is read as
a whole. Although the opinion was deliberate in recognizing the wide range of communications
used in presidential decisionmaking and thus appropriately protected by the privilege, it in the
same breath cautioned against an overbroad interpretation of the privilege:
[T]he presidential communications privilege should be construed as narrowly as is
consistent with ensuring that the confidentiality of the President’s decisionmaking
process is adequately protected. Not every person who plays a role in the
development of presidential advice, no matter how remote and removed from the
President, can qualify for the privilege. . . . [T]he privilege should apply only to
communications authored or solicited and received by those members of an
immediate White House adviser’s staff who have broad and significant
responsibility for investigating and formulating the advice to be given the
President on the particular matter to which the communications relate. Only
communications at that level are close enough to the President to be revelatory of
his deliberations or to pose a risk to the candor of his advisers.
In re Sealed Case, 121 F.3d at 752. Defendants’ interpretation of the privilege—which would
8
extend the privilege to the identities of visitors to the White House or the Vice President’s
residence—is clearly at odds with the Circuit’s admonition. The presidential communications
privilege, as its name and the Circuit’s opinions suggest, extends only to communications. The
visit records sought by plaintiff need only consist of the visitor’s name, date and time of visit,
and in some cases the name of the person requesting access for the visitor and in some cases the
name of the person visited.6 Such information sheds no light on the content of communications
between the visitor and the President or his advisors, whether the communications related to
presidential deliberation or decisionmaking, or whether any substantive communications even
occurred. “The presidential communications privilege should never serve as a means of
shielding information regarding governmental operations that do not call ultimately for direct
decisionmaking by the President.” Id.
Moreover, to make such an extension would be particularly inappropriate in this case.
Shielding such general information as the identities of visitors would “considerably undermine
the purposes of FOIA to foster openness and accountability in government.” Judicial Watch, 365
F.3d at 1118. That damage would be incurred in exchange for a negligible increase in White
6
WAVES records, created in connection with White House visits, include the requestor
name and the visitee name. See Pl.’s Mot. Ex. B (Letter from Justin Sandberg, Oct. 20, 2008).
The records may contain other information as well, some of which may well be covered by other
FOIA exemptions. (See Defs.’ Notice of Filing (Amended) [57] Ex. A at 2 (claiming that visitor
Social Security numbers and birthdates, along with coded instructions to Secret Service officers
and other security-related information, would be covered by FOIA Exemptions (b)(2), (b)(6),
(b)(7)(C), and (b)(7)(E)).) If that information—which is not at the core of the information sought
by plaintiff—is indeed subject to the claimed privileges, DHS has a duty under FOIA to redact
the privileged information and release the rest of the sought records. See 5 U.S.C. § 552(b)
(following list of exemptions) (“Any reasonably segregable portion of a record shall be provided
to any person requesting such record after deletion of the portions which are exempt under this
subsection.”).
9
House confidentiality (of a type which, as discussed above, has not heretofore been considered
within the bounds of the presidential communications privilege). Defendants describe
circumstances in which White House visitors’ identities might somehow shed some degree of
light on the deliberations of the President (for example, a visit of a particular candidate during a
Supreme Court vacancy, or the visit of an economist with well-known views or expertise). (See
Defs.’ Mot. at 7–8.) While the Court does not rule out the possibility that there may exist some
hypothetical situation wherein the factual circumstances surrounding such a visit might reveal the
substance of presidential deliberations, such a scenario is certainly not presented by the facts in
this action. In the Court’s view, it would take near-omniscience for an observer to tease any
accurate meaning out of the visits for which plaintiff seeks records. Accordingly, the likelihood
that public release of these records would “‘impede the President’s ability to perform his
constitutional duty,’” In re Sealed Case, 121 F.3d at 751 (quoting Morrison v. Olson, 487 U.S.
654, 691 (1988))—the “ultimate question” when interpreting the limits of the presidential
communications privilege, id.—is not great enough to justify curtailing the public disclosure
aims of FOIA.
The Court concludes, therefore, that the agency records sought by plaintiff do not fall
within the presidential communications privilege and thus are not shielded from disclosure by
FOIA Exemption 5. Because the records are not covered by the claimed FOIA exemption, the
existence or nonexistence of responsive records cannot be covered—meaning that DHS’s Glomar
response is inappropriate.
10
D. Conclusion as to Claims One and Two (FOIA Claims)
Defendants’ motion asks for an extension of the presidential communications privilege
that is, as a matter of law, inconsistent both with the precedent of this Circuit and with the
purposes of FOIA. Accordingly, the Court will deny defendants’ motion and grant summary
judgment in favor of plaintiff on Claims One and Two. Defendant DHS shall process plaintiff’s
FOIA request—including a search of all relevant agency records—and release all nonexempt
responsive records.
II. CLAIMS THREE AND FOUR (FRA CLAIMS)
A. Factual and Procedural Background
As discussed in part I, plaintiff requested records of visits to the White House and the
Vice President’s residence (“VPR”) by certain named individuals in October 2006. To review,
visits to the White House are reflected by two main types of records, ACR records and WAVES
records. Other security-related records are also created. Visits to the VPR are reflected by
several types of records, including “post entry logs,” “permanent access lists,” “daily access
lists,” “event lists,” and e-mails requesting access to VPR (hereinafter referred to collectively as
“VPR visit records”).7
Through the course of other FOIA requests and subsequent litigation, plaintiff learned
that DHS had, prior to October 2004, maintained a “longstanding practice” of periodically
7
Again, see CREW v. DHS, 527 F. Supp. 2d 76, 79–82, 83–85 (D.D.C. 2007), for more
details on the various types of records. Those details are not relevant to this motion. What is
relevant, as discussed in part I and later in this part, is that this Court has already held all of these
records to be “agency records” under FOIA, see id. at 98, and that these records were deleted
internally or otherwise not retained by DHS.
11
transferring large numbers WAVES records to the White House and then deleting DHS’s internal
copies. (Compl. Ex. B (Decl. of Kathy Lyerly, U.S. Secret Service, May 16, 2006) ¶¶10–11
[hereinafter “Lyerly Decl”].)8 Plaintiff also obtained a “Memorandum of Understanding”
between the White House and the Secret Service indicating that the Archivist instructed the
Secret Service to stop deleting WAVES records in October 2004; the Secret Service complied.
(Compl. Ex. C (Memorandum of Understanding Between U.S. Secret Service and White House
Office of Records Management, May 17, 2006) ¶¶14, 16 [hereinafter “MOU”]; see also Lyerly
Decl. ¶11.)
Plaintiff’s first FRA claim, Claim Three, alleges that DHS’s recordkeeping policies are
“arbitrary, capricious, and contrary to law” because they fail to comply with the FRA. (Compl.
¶¶45–49.) The second FRA claim, Claim Four, alleges that the Archivist violated a mandatory
duty under the FRA by failing to seek legal action through the Attorney General after becoming
aware of the deletion of WAVES records. (Compl. ¶¶50–53.) (The Archivist became aware of
the deletion no later than 2004, according to the Memorandum of Understanding.) In relation to
its FRA claims, plaintiff’s Complaint asked the Court (a) to declare DHS’s recordkeeping policy
arbitrary, capricious, and contrary to law; and (b) to declare the Archivist in breach of her
statutory duty and order her to seek legal action by the Attorney General with corresponding
8
Plaintiffs asserted their belief that the internal deletion of WAVES records began
sometime in 2001, after President George W. Bush’s inauguration. (Compl. ¶34.) Although
DHS originally answered that it “lack[ed] knowledge or information sufficient to form a belief”
as to when exactly the practice began (Answer ¶34), it later submitted a declaration indicating
that the practice had been in place “[s]ince at least 2001” (Defs.’ Mot. [29] for Summary
Judgment Ex. A (Third Decl. of Paul S. Morrissey, U.S. Secret Service, May 23, 2007) ¶18). For
purposes of this motion, however, it matters not when exactly the deletion of records began. The
facts that records were deleted is sufficient.
12
notice to Congress as required by statute. (Compl. at 14.)
Defendants, as part of an earlier Motion [29] for Summary Judgment, submitted a
declaration stating that, in addition to the aforementioned deletion of WAVES records, DHS had
regularly transferred VPR visit records to the Office of the Vice President (“OVP”) without
retaining agency copies. (Defs.’ Mot. [29] for Summary Judgment Ex. A (Third Decl. of Paul S.
Morrissey, U.S. Secret Service, May 23, 2007) ¶¶37, 39–41 [hereinafter “Third Morrissey
Decl.”].). DHS decided internally to stop purging its copies of these records in June 2006. (Id.
¶¶38–41.)
B. Legal Framework
1. The Federal Records Act (FRA)
The statutes that make up the Federal Records Act govern the creation, maintenance, and
destruction of federal records. Of relevance to this litigation, the FRA requires certain actions be
taken by both the agency and the Archivist when “alienat[ion] or destr[uction]” of records is
contemplated. 44 U.S.C. § 3314. Before alienation or destruction of federal records, an agency
must submit to the Archivist a list of such records “that do not appear to have sufficient
administrative, legal, research, or other value to warrant their further preservation by the
Government.” Id. § 3303(2). Alternatively, an agency can submit schedules allowing for
disposal of a certain type of records after a specified period of time. Id. § 3303(3). Aside from
only a few exceptions not relevant here, records cannot be destroyed or alienated until those lists
or schedules are submitted to and approved by the Archivist. Id. §§ 3303a, 3314.
The FRA also includes administrative mechanisms for preventing or remedying the
13
improper destruction or alienation of records. Of particular relevance to this litigation is the
specified role of the Archivist:
[The Archivist] shall notify the head of a Federal agency of any actual, impending,
or threatened unlawful removal, defacing, alteration, or destruction of records in
the custody of the agency that shall come to his attention, and assist the head of
the agency in initiating action through the Attorney General for the recovery of
records unlawfully removed and for other redress provided by law. In any case in
which the head of the agency does not initiate an action for such recovery or other
redress within a reasonable period of time after being notified of any such
unlawful action, the Archivist shall request the Attorney General to initiate such
an action, and shall notify the Congress when such a request has been made.
44 U.S.C. § 2905(a).
There is no express or implied provision in the FRA allowing for a private party to sue an
agency for an FRA violation. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S.
136, 148 (1980). However, courts have endorsed certain types of FRA-related suits under the
Administrative Procedures Act (“APA”). See Armstrong v. Bush, 924 F.2d 282, 297 (D.C. Cir.
1991) [hereinafter Armstrong I]. Accordingly, plaintiff brings this FRA-related action under the
APA.
2. Standard for Summary Judgment
Again, summary judgment can be granted only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. The moving party—here the
plaintiff—bears the burden of establishing the absence of a genuine issue of material fact.
C. Analysis
1. Defendants’ Arguments Against Summary Judgment
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i. Private Right of Action Against the Archivist
The Court turns first to defendants’ contention that, under the FRA, plaintiff cannot
maintain a private right of action against the Archivist. The Court draws the opposite conclusion
from the D.C. Circuit’s words in Armstrong I, which, like this suit, involved an FRA-related
action under the APA: “[I]f the agency head or Archivist does nothing while an agency official
destroys or removes records in contravention of agency guidelines and directives, private litigants
may bring suit to require the agency head and Archivist to fulfill their statutory duty to notify
Congress and ask the Attorney General to initiate legal action.”9 Defendants dismiss this as
dictum. But dictum though it may be, this part of the opinion is indispensable to the opinion’s
overall conception of rights of action related to the FRA. After holding that a private individual
could not sue an agency under the FRA to stop destruction of records—as the Armstrong I
plaintiff had done—the court continued:
We do conclude, however, that it would not be inconsistent with Kissinger[, 445
U.S. at 136,] or the FRA to permit judicial review of the agency head’s or
Archivist’s refusal to seek the initiation of an enforcement action by the Attorney
General. Nothing in the legislative history suggests that Congress intended to
preclude judicial review of either the agency head’s or the Archivist’s failure to
take enforcement action. Indeed, judicial review of the agency head’s and
Archivist’s failure to take enforcement action reinforces the FRA scheme by
ensuring that the administrative enforcement and congressional oversight
provisions will operate as Congress intended. Unless the Archivist notifies the
agency head (and, if necessary, Congress) and requests the Attorney General to
initiate legal action, the administrative enforcement and congressional oversight
provisions will not be triggered, and there will be no effective way to prevent the
destruction or removal of records. Thus, if the agency head or Archivist does
nothing while an agency official destroys or removes records in contravention of
agency guidelines and directives, private litigants may bring suit to require the
9
In this case, plaintiff alleges that the agency violated not agency guidelines and
directives, but the FRA itself. This difference does not affect the conclusion that plaintiff’s
private action is consistent with the FRA.
15
agency head and Archivist to fulfill their statutory duty to notify Congress and ask
the Attorney General to initiate legal action.
Armstrong I, 924 F.2d at 295 (footnote omitted and emphasis added). The court even restated its
position in the opinion’s conclusion: “[T]he APA authorizes the district court to entertain a
properly pleaded claim that the Archivist or an agency head has breached the statutory duty to
take enforcement action to prevent an agency official from destroying records in contravention of
the agency’s recordkeeping guidelines or to recover records unlawfully removed from an
agency.” Id. at 297. Reading this “dictum” in context makes it abundantly clear that suing the
Archivist (or the agency head) under the APA to compel him or her to ask the Attorney General
to initiate legal action is the proper course for a private party to go about enforcing the FRA.
Thus, under the law of this Circuit, plaintiff’s action against the Archivist is consistent with the
FRA.
ii. Standing
Alternatively, defendants argue that if there is a private right of action available, plaintiff
does not have Article III standing to bring such an action. The Court, guided by binding
precedent, disagrees. Before a plaintiff has standing to bring an action in federal court, he must
demonstrate a three-part “irreducible constitutional minimum.” Lujon v. Def. of Wildlife, 504
U.S. 555, 560 (1992). First, the plaintiff must show a “concrete and particularized” injury that is
“actual or imminent, not conjectural or hypothetical.” Id. (quotation marks omitted). Second,
that injury must be “fairly . . . traceable to the challenged action of the defendant.” Id. (quotation
marks omitted). Finally, it must be “‘likely,’ as opposed to merely ‘speculative,’ that the injury
will be redressed by a favorable decision.” Id. at 561 (citation and quotation marks omitted).
16
a. Injury and Traceability
Defendants claim that plaintiff has no standing to bring its suit under the FRA because
plaintiff lacks an injury in fact. Defendants contend that because the records in question will be
preserved under the Presidential Records Act (“PRA”), plaintiff has not been harmed by
defendants’ actions. Defendants argue that under the PRA any visitor records that have been
transferred to the White House or OVP will be available to the public between five and twelve
years after the current administration leaves office, “subject to any constitutionally based
privileges available to the President or the Vice President.” (Opp’n at 6.) The Court, however,
agrees with plaintiff that, the PRA notwithstanding, defendants’ alleged FRA violations
contributed to plaintiff’s inability to obtain the requested records, which is injury sufficient to
support standing.10
As plaintiff notes, it is interested not only in preservation of the records, but in access to
them (through FOIA). DHS failed to respond fully to plaintiff’s FOIA request. This is sufficient
injury for standing under our case law. See CREW v. DHS, 527 F. Supp. 2d 101, 105 (D.D.C.
2007) (Lamberth, J.) (citing Zivotofsky v. Sec’y of State, 444 F.3d 614, 617 (D.C. Cir. 2006)
(“Anyone whose [FOIA] request for specific information has been denied has standing to bring
an action; the requester's circumstances—why he wants the information, what he plans to do with
10
In the alternative, plaintiff argues that it suffered injury when it was not allowed to
comment on the deletion of the records. (Mot. at 16.) (Under the FRA, had DHS submitted a list
or schedule proposing deletion to the Archivist, the Archivist would have published a notice in
the Federal Register and allowed for public comment. 44 U.S.C. § 3303a(a).) Plaintiff cites no
legal authority for this position. The Court is skeptical of this position; were plaintiff correct,
then any potential litigant could challenge an FRA violation by asserting that it would have
commented on the deletion. This would essentially remove the injury requirement from the
standing analysis in private actions to enforce the FRA. Fortunately for plaintiff, however, its
pending FOIA action provides a more convincing basis for the requisite finding of injury.
17
it, what harm he suffered from the failure to disclose—are irrelevant to his standing.”)). The fact
that plaintiff may, at some time years in the future, be able to access these records through some
other source does not nullify the injury plaintiff suffers today.
Moreover, plaintiff faces the type of ongoing or future injury required to maintain
standing for the prospective (declaratory and injunctive) relief sought. “When a party seeks
prospective relief, such as a declaratory order invalidating an agency policy, it
must show that it is likely to suffer a future injury.” Id. at 105. Here, plaintiff’s pending FOIA
request has not yet been satisfied. Plaintiff still seeks from defendant visitor records that have
been transferred to the White House or OVP and internally deleted. Plaintiff’s pending
unfulfilled FOIA request provides the ongoing injury needed for standing.
b. Redressability
In a footnote, defendants argue that plaintiff lacks standing for one of the elements of
prayed-for relief—an order for the Archivist to ask the Attorney General to initiate legal action
against DHS. (Opp’n at 7 n.5). Defendants note that even if the Archivist asks the Attorney
General to initiate legal action, the Attorney General may very well decline to do so, leaving
plaintiff’s injury unredressed. Id. In this Court’s view, defendants’ redressability argument is
foreclosed by binding precedent. The D.C. Circuit decided in Armstrong I that it was appropriate
for a plaintiff whose only injury is denial of records to seek the relief exact relief sought here.
Armstrong I, 924 F.2d at 295. Although Armstrong I did not directly discuss the redressability
element of standing, one cannot read Armstrong I and conclude that court did not believe that a
private litigant who otherwise had standing would be unable to pursue such relief for lack of
redressability.
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iii. Visitor Records Are “Federal Records” Under the FRA
Defendants’ final argument, made in several different forms, claims that the sought
records are presidential records, not agency records, and therefore are covered by the PRA
(which allows no private right of action against the Archivist), not the FRA. This Court has
already reached the opposite conclusion in this case in relation to plaintiff’s FOIA claims.
CREW v. DHS, 527 F. Supp. 2d 76, 98 (D.D.C. 2007) (holding that the visitor records at issue
here continue to be “agency records” for purposes of FOIA even after they are transferred to the
White House or OVP and internally destroyed). “For purposes of the PRA, presidential records
do not include ‘any documentary materials that are . . . official records of an agency,’ as the term
‘agency’ is defined in the FOIA.” Armstrong v. Executive Office of the President, 90 F.3d 553,
556 (D.C. Cir. 1996) [hereinafter Armstong III] (citations omitted). It follows, then, that the
records at issue here—having been found by this Court to be subject to FOIA—are “federal
records” subject to the FRA. Defendant’s arguments to the contrary are without merit.
2. Plaintiff’s Motion for Summary Judgment
Having disposed of defendants’ arguments against summary judgment, the Court now
turns to whether plaintiff has carried its burden. Again, Claim Three asks the Court to declare
that DHS’s internal deletion of visitor records is arbitrary, capricious, and contrary to law, and
Claim Four asks the Court to direct the Archivist to ask the Attorney General to initiate legal
action to remedy DHS’s allegedly illegal recordkeeping practices and to notify Congress
accordingly. Plaintiff has established its entitlement to summary judgment on DHS’s WAVES
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retention practices prior to October 2004 and the insufficiency of the Archivist’s response to
those practices. Plaintiff has also demonstrated the illegality of DHS’s VPR record retention
practices prior to June 2006. However, plaintiff has not made a similar showing with regard to
DHS’s recordkeeping practices after those dates, which, based on the record, appear to be
consistent with the FRA.
i. Summary Judgment as to Claim Three
Armstrong I established that a private party can sue under the APA to obtain a declaration
that an agency’s recordkeeping practices are contrary to law. Armstrong I, 924 F.2d at 297(“[W]e affirm the district court’s decision that the APA authorizes judicial review of plaintiffs’
claim that the [agency’s] recordkeeping guidelines and directives are arbitrary and capricious.”).
Here, plaintiff has established (and defendants have not seriously contested) that during the
period that WAVES records were being internally deleted, DHS’s recordkeeping practices did
not comply with the FRA. Defendant DHS (through its component the Secret Service) has
admitted in declarations that WAVES records were deleted from agency record systems prior to
October 2004. (See Lyerly Decl. ¶¶10–11; Third Morrissey Decl. ¶18.) Defendant had not
submitted any schedules for disposal of records to the Archivist for approval11 nor taken any of
the other steps required by the FRA prior to destruction or alienation of records. Defendants do
not allege that the Archivist gave any type of permission for the records to be deleted from
DHS’s system. In sum, plaintiff has established that there is no genuine issue of material fact as
to the legality of DHS’s pre–October 2004 WAVES retention practices, and defendant has failed
11
Defendant does not dispute that the two schedules that were submitted in 1990 and
1993, respectively, were withdrawn before they were approved. (Pl.’s Statement of Mat. Facts
¶¶7–8; Defs.’ Response to Pl’s Statement of Mat. Facts ¶¶7–8.)
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to identify any such issues. DHS’s practices were contrary to the FRA, and plaintiff is entitled to
judgment as a matter of law. Accordingly, the Court will grant summary judgment for plaintiff
on Claim Three as to DHS’s WAVES retention practices prior to October 2004.
Plaintiff has also established that VPR visit records had been deleted or otherwise
removed prior to June 2006. This policy was contrary to the FRA for the same reasons as the
deletion of WAVES records. Plaintiff will be awarded summary judgment on this point as well.
What plaintiff has not shown is that DHS’s post–October 2004 retention of WAVES
records, or its post–June 2006 maintenance of VPR records, is contrary to law. As for WAVES
records, all of the documentation submitted by plaintiff indicates that DHS ended its internal
deletion in October 2004 at the request of the Archivist. (See, e.g., MOU ¶16.) Admittedly, the
Memorandum of Understanding assumes that visitor records are “Presidential Records” rather
than “Agency Records,” and stipulates that the post–October 2004 retention of WAVES records
is “a temporary practice maintained until a legal determination [is] made confirming the
propriety of handling [White House visitor records] as Presidential Records.” (Id. ¶¶16–17.)
This Court has since confirmed that WAVES records, as well as VPR visit records, are in fact
agency records. See, e.g., CREW v. DHS, 527 F. Supp. 2d at 98; Judicial Watch v. U.S. Secret
Service, --- F. Supp. 2d ---, 2008 WL 4405340, *5–*6 (D.D.C. Sept. 30, 2008) (Lamberth, J.).
DHS has not indicated that it would continue to delete WAVES records in the face of such a
determination. As for VPR records, the precise reason disposal was halted in June 2006 is
unknown. However, plaintiff has not asserted that record disposal continued thereafter. Because
plaintiff has not shown DHS’s post–October 2004 retention of WAVES records or its post–June
2006 retention of VPR records to be contrary to law, the Court will not grant summary judgment
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on those points.
ii. Summary Judgment on Claim Four
With regard to Claim Four against the Archivist, plaintiff has established that the
Archivist was aware of DHS’s pre–October 2004 deletion of WAVES records. The fact that the
deletion was halted at the request of the Archivist shows the Archivist’s awareness. (See MOU
¶16.) Defendants do not contest this point. (See Defs.’ Response to Pl.’s Statement of Mat.
Facts ¶5 (admitting that the Archivist requested that DHS stop internal deletion).) Defendants
have presented no evidence that the Archivist took any action in fulfillment of the statutory duty
to “initiat[e] action through the Attorney General for the recovery of WAVES records unlawfully
removed and for other redress provided by law.” 44 U.S.C. § 2905(a). Plaintiff has thus
established that (1) DHS deleted WAVES records without following FRA procedures and (2) the
Archivist did not fulfill the role mandated by the FRA in remedying that deletion. Plaintiff has
carried its burden of establishing the absence of genuine issues of material fact, and under the
law of this Circuit is entitled to judgment as a matter of law. Accordingly, the Court will grant
summary judgment for plaintiff on Claim Four with regard to the Archivist’s response to DHS’s
pre–October 2004 deletion of WAVES records. The Archivist will be ordered to (1) request that
the Attorney General initiate legal action to recover the deleted WAVES records and (2) notify
Congress accordingly.
However, the Archivist did comply with the statutory duty to prevent further WAVES
record deletion after October 2004. Again, plaintiff’s evidence indicates that the Archivist
requested that the deletion of WAVES records be halted in October 2004, and that DHS agreed
to end the practice (albeit “temporar[ily]” pending judicial resolution of the records’ character).
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(See MOU ¶16.) By successfully halting the deletion of WAVES records, the Archivist executed
the mandatory duty to prevent further destruction or removal of federal records. Armstrong I
noted that the Archivist can use methods other than direct appeal to the Attorney General and
still comply with the FRA: “[T]he FRA contemplates that the agency head and Archivist may
proceed first by invoking the agency’s safeguards against the removal or loss of records . . . and
taking such intra-agency actions as disciplining the staff involved in the unlawful action,
increasing oversight by higher agency officials, or threatening legal action.” Armstrong I, 924
F.2d at 296 n.12 (internal quotations omitted). Here, a simple request prevented the future
deletion of records. Thus, because the Archivist has fulfilled her FRA obligations regarding
DHS’s WAVES retention practices from October 2004 to present, Court cannot declare that the
Archivist’s actions related to that period were or are contrary to law.
As for VPR records, plaintiff simply fails to show that the Archivist is now or has ever
been aware of the deletion or removal of VPR records. The FRA mandates that the Archivist
contact the Attorney General only once the illegal recordkeeping practice “come[s] to his
attention.” 44 U.S.C. § 2905(a). By failing to demonstrate the Archivist’s awareness of DHS’s
pre–June 2006 retention practices for VPR visit records, plaintiff falls short of showing that the
Archivist has a mandatory duty under the FRA and that therefore plaintiff is entitled to judgment
as a matter of law. Accordingly, the Court will not grant summary judgment for plaintiff as to
the Archivist’s response to DHS’s pre–June 2006 VPR visit record retention practices with
regard to those records.
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D. Conclusion as to Claims Three and Four (FRA Claims)
Plaintiff has established the DHS’s pre–October 2004 nonretention of WAVES records
and its pre–June 2006 nonretention of VPR visit records were contrary to the FRA, and the Court
will declare as much. Plaintiff has also established that the Archivist was aware of the
nonretention of WAVES records and failed to (1) ask the Attorney General to initiate legal action
to recover the deleted records and (2) notify Congress (as the FRA requires). The Court will
declare as much and will order the Archivist to make the request and notify Congress. However,
plaintiff has failed to show that DHS’s post–October 2004 retention of WAVES records or its
post–June 2006 retention of VPR visit records are in violation of the FRA. Plaintiff has also
failed to establish that the Archivist was aware of DHS’s pre–June 2006 nonretention of VPR
visit records, a necessary precursor to the Archivist’s FRA-mandated duty to contact the Attorney
General.
III. CONCLUSION
For the reasons stated above, the Court will deny defendants’ motion [64] and grant
plaintiff’s motion [68] for summary judgment on Claims One and Two. The Court will also
grant in part and deny in part plaintiff’s motion [51] for summary judgment on Claims Three and
Four. A separate order shall issue this date.
Signed by Chief Judge Royce C. Lamberth on January 9, 2009.
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