Judicial Watch, Inc. v. United States Secret Service ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
v. Civil Action No. 09-2312 (BAH)
UNITED STATES SECRET SERVICE,
Defendant.
MEMORANDUM OPINION
Plaintiff Judicial Watch, Inc. brought this case to compel Defendant U.S. Secret Service
to respond to a Freedom of Information Act (“FOIA”) request. The plaintiff’s FOIA request,
sent on August 10, 2009, sought all White House visitor logs from the date of President Barack
Obama’s inauguration, January 20, 2009, through “the present.” The FOIA generally requires
the disclosure, upon request, of records held by a federal government agency unless the records
are protected from disclosure under one of nine FOIA exemptions. In this case, the defendant
has withheld all requested records, asserting that, while the Secret Service is an executive agency
subject to FOIA, the documents in question are not agency records subject to FOIA disclosure.
The plaintiff has moved for partial summary judgment on the issue of whether the requested
documents are agency records subject to FOIA. The defendant has filed a cross-motion for
summary judgment asking the Court to hold that the documents are not subject to FOIA. For the
reasons discussed below, plaintiff’s motion for partial summary judgment is granted and the
defendant’s cross-motion for summary judgment is denied.
I. BACKGROUND
On August 10, 2009, Plaintiff Judicial Watch, Inc. sent a FOIA request to Defendant
United States Secret Service seeking access to “[a]ll official visitor logs and/or other records
concerning visits made to the White House from January 20, 2009 to the present.” Compl. ¶¶ 3-
5. The Secret Service responded to Judicial Watch’s request with a letter, dated October 8, 2009,
which informed Judicial Watch that the Secret Service interpreted the request to encompass
“Access Control Records System (ACR) records and/or Workers and Visitors Entry System
(WAVES) records.” Id. ¶ 7. These two overlapping sets of records are used by the Secret
Service to clear and track visitors to the White House Complex.
WAVES records consist primarily of information provided to the Secret Service by
authorized White House Complex pass holders regarding proposed visitors to the White House
Complex. Def.’s Statement of Mat. Facts Not In Dispute (“Def.’s SMF”) ¶¶ 4, 6. The
authorized pass holder electronically submits to the Secret Service information such as the
identifying information of the visitor, including name, date of birth, and Social Security number,
the date, time and location of the planned visit, the name of the staff member submitting the
request, the name of the person to be visited, and the date of the request. Id. ¶ 5. The Secret
Service uses this information to perform background checks on the proposed visitors to
determine if there are any security concerns and to verify the visitor’s admissibility at the time of
his or her visit. Id. ¶ 7.
Once an individual is cleared into the White House Complex, he or she is normally issued
a visitor pass. The use of these passes at electronic pass readers located at the entrances to and
exits from the White House Complex generates the second type of records – ACR records. Id. ¶
9. The ACR records include information such as the visitor’s name and pass number, the date
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and time of the swipe, and the post at which the swipe was recorded. Id. ¶ 10. After a visit,
WAVES records are normally updated electronically with ACR information regarding the time
and place of entry and exit. Id. ¶ 11.
On September 15, 2009, in the interest of public transparency, the White House adopted a
policy of voluntary public disclosure for WAVES records, subject to certain exceptions. See
Declaration of Philip C. Droege, dated April 21, 2010, (“Droege Decl.”) ¶¶ 16-18.
In the October 8, 2009 response to plaintiff’s FOIA request, the Secret Service informed
Judicial Watch that it had determined that WAVES and ACR records “are not agency records
subject to the FOIA.” Compl. ¶ 7. More specifically, the letter stated that the government’s
position is that “these records are records governed by the Presidential Records Act, 44 U.S.C. §
2201 et seq., and remain under the exclusive legal custody and control of the White House Office
and the Office of the Vice President.” October 8, 2009 Letter, Ex. E to Def.’s Mem.
Judicial Watch then sent an administrative appeal letter to the Secret Service contesting
the Secret Service’s denial of the request and, specifically, the assertion by the Secret Service
that the requested records are not agency records subject to FOIA. Compl. ¶ 8. The Secret
Service denied the appeal. Id. ¶ 9. Judicial Watch then filed the action currently before the
Court on December 7, 2009.
On February 22, 2010, Judicial Watch moved for partial summary judgment, pursuant to
Federal Rule of Civil Procedure 56, on the issue of whether the Secret Service visitor logs are
agency records subject to the Freedom of Information Act, 5 U.S.C. § 552. In response, on April
21, 2010, the Secret Service filed a cross-motion for summary judgment on the same issue.1
1
This case was reassigned to the current presiding judge on January 20, 2011.
3
II. STANDARD OF REVIEW
Congress enacted FOIA to promote transparency across the government. See 5 U.S.C. §
552; Quick v. U.S. Dep’t of Commerce, Nat’l Inst. of Standards & Tech., No. 09-02064, 2011
WL 1326928, at *3 (D.D.C. April 7, 2011) (citing Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir.
1984)). The Supreme Court has explained that FOIA is “a means for citizens to know ‘what
their Government is up to.’ This phrase should not be dismissed as a convenient formalism. It
defines a structural necessity in a real democracy.” Nat’l Archives & Records Admin. v. Favish,
541 U.S. 157, 171-172 (2004) (internal quotations and citations omitted). “The basic purpose of
FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed
to check against corruption and to hold the governors accountable to the governed.” NLRB v.
Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).
The strong interest in transparency must be tempered, however, by the “legitimate
governmental and private interests [that] could be harmed by release of certain types of
information.” United Techs. Corp. v. U.S. Dep’t of Defense, 601 F.3d 557, 559 (D.C. Cir. 2010);
see also Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 872 (D.C.
Cir. 1992). Accordingly, Congress included nine exemptions permitting agencies to withhold
information from FOIA disclosure. 5 U.S.C. § 552(b). “These exemptions are explicitly made
exclusive, and must be narrowly construed.” Milner v. Dep’t of the Navy, 131 S. Ct. 1259, 1262
(2011) (internal quotations and citations omitted) (citing FBI v. Abramson, 456 U.S. 615, 630
(1982)); see also Pub. Citizen, Inc. v. Office of Management and Budget, 598 F.3d 865, 869
(D.C. Cir. 2010).
Pursuant to Federal Rule of Civil Procedure 56, the Court will grant a motion for
summary judgment “if the movant shows that there is no genuine dispute as to any material fact
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and the movant is entitled to judgment as a matter of law” based upon the pleadings, depositions,
and affidavits and other factual materials in the record. Fed. R. Civ. P. 56(a), (c); Tao v. Freeh,
27 F.3d 635, 638 (D.C. Cir. 1994). The Court “need consider only the cited materials, but it may
consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). The Court must view all
inferences in a light most favorable to the non-moving party. Tao, 27 F.3d at 638 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 255 (1986)). The burden is on the moving
party to demonstrate that there is an “absence of a genuine issue of material fact” in dispute.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
A defendant is entitled to summary judgment in a FOIA case if it demonstrates that no
material facts are in dispute, it has conducted an adequate search for responsive records, and
each responsive record, which is located, was either produced to the plaintiff or is exempt from
disclosure. See Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 368-69 (D.C. Cir. 1980). To
meet its burden, the defendant may rely on relatively detailed, non-conclusory declarations.
McGehee v. CIA, 697 F.2d 1095, 1102 (D.C. Cir. 1983). The defendant is entitled to summary
judgment when “it demonstrates that each document sought is not subject to FOIA’s disclosure
requirements.” Citizens for Responsibility and Ethics in Wash. v. U.S. Dep’t of Homeland Sec.,
527 F. Supp. 2d 76, 88 (D.D.C. 2007) (hereinafter, “CREW”) (citing Exxon Corp. v. F.T.C., 663
F.2d 120, 126 (D.C. Cir. 1980)). Agency decisions to withhold information under the Freedom
of Information Act are reviewed de novo by this court. Judicial Watch, Inc. v. U.S. Postal Serv.,
297 F. Supp. 2d 252, 256 (D.D.C. 2004).
III. DISCUSSION
Judicial Watch, in moving for partial summary judgment, has requested the Court declare
that the Secret Service visitor logs are agency records subject to FOIA. In response, the Secret
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Service has filed a cross motion for summary judgment on the same issue. Both parties appear to
agree “that there is no genuine dispute as to any material fact,” Fed. R. Civ. P. 56(a), and
disagree simply about how the law applies to the facts at hand. See Pl.’s Mem. in Supp. of Mot.
for Partial Summ. J. (“Pl.’s Mem.”) at 1 (“[N]o disputes of material fact exist as to the nature of
the records. . . .”); Def.’s Cross-Mot. for Summ. J. at 1 (“[T]here is no genuine issue as to any
material fact. . . .”). Therefore, it is appropriate to enter judgment on this specific question now.
The Secret Service advances three arguments in support of its motion for summary
judgment. First, the Secret Service argues that the WAVES and ACR records are Presidential
records, and therefore not agency records subject to FOIA. Second, the Secret Service argues
that the FOIA should be construed not to cover the WAVES and ACR records in order to avoid a
serious Constitutional separation of powers question. Third, the Secret Service argues that, even
if the WAVES and ACR records are subject to FOIA, the FOIA request in this case would be
“virtually impossible to process without creating the unacceptable risk that sensitive records
implicating national security concerns would be inappropriately released.” Def.’s Mem. in Supp.
of Cross-Mot. for Summ. J. and in Opp’n to Pl.’s Mot. for Partial Summ. J. (“Def.’s Mem.”) at
2. For the reasons explained below, the Court will grant the plaintiff’s motion for partial
summary judgment and will deny the defendant’s cross-motion for summary judgment.
A. WAVES and ACR Records are Agency Records Under the FOIA
The central argument the Secret Service advances is that the WAVES and ACR records
are not “agency documents” subject to FOIA, which is a prerequisite to federal jurisdiction. See
CREW, 527 F. Supp. 2d at 88 (“Under 5 U.S.C. § 552(a)(4)(B) federal jurisdiction is dependent
upon a showing that an agency has (1) improperly; (2) withheld; (3) agency records.” (quoting
6
Kissinger v. Reporters Comm. for Freedom of Press, 445 U.S. 136, 150 (1980)) (internal
quotations omitted)). The Court disagrees.
The Supreme Court has established a two-part test for evaluating whether a record is an
agency record within the meaning of FOIA. “First, an agency must either create or obtain the
requested materials . . . . Second, the agency must be in control of the requested materials at the
time the FOIA request is made.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 144-45
(1989) (internal quotations omitted). Applying this test, the Court finds the records are subject to
FOIA.
Two other judges in this District have previously applied this standard to WAVES and
ACR records, and both determined that the records are agency records subject to FOIA. See
CREW, 527 F. Supp. 2d 76; Wash. Post v. U.S. Dep’t of Homeland Sec., 459 F. Supp. 2d 61(D.D.C. 2006), vacated on other grounds 2007 U.S. App. LEXIS 6682 (D.C. Cir. Feb. 27,
2007).2 This Court agrees with the conclusions of the other judges in this District that have
considered this question and finds that the records are subject to FOIA.
1. The Secret Service “Creates or Obtains” the Records
The Secret Service does not appear to contest that it “create[s] or obtain[s]” the WAVES
and ACR records. At a minimum, the Secret Service obviously obtains the records. Therefore,
the Court’s analysis of this first requirement will be brief.
The Secret Service describes the creation process for WAVES and ACR records as
involving multiple steps. Normally, the process begins when authorized White House Complex
pass holders, typically members of the Presidential or Vice-Presidential staff, provide the Secret
Service with the personal information of a proposed visitor through an automated computer
2
The Secret Service is a branch of the U.S. Department of Homeland Security. Therefore, the defendant in these
prior opinions is effectively the same as in the current action, and many of the exact same arguments advanced here
by the Secret Service were addressed in those prior opinions.
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system. Droege Decl. ¶¶ 4-6. This information can also be provided in other ways, such as by e-
mail, telephone, or physical delivery. Id. ¶ 6. In such instances, Secret Service personnel enter
the information into the WAVES system. Id. This information is processed by the Secret
Service to perform background checks on the proposed visitors, and to verify the admissibility of
the visitors at the time of visit. Id. ¶¶ 5-6.
In describing this process, the Secret Service seeks to emphasize the role that Presidential
and Vice-Presidential staff members play by providing much of the information that make up the
records. “By focusing on the contents of the records, the Secret Service overlooks the process by
which the records are generated,” however. CREW, 527 F. Supp. 2d at 90 (citing Wash. Post,
459 F. Supp. 2d at 69 (D.D.C. 2006)). This distinction is important, because “[t]he FOIA deals
with documents, not information.” Id. (citing Forsham v. Harris, 445 U.S. 169, 185 (1980)). As
in CREW, “the Secret Service invites the Court to elevate the contents of the record ahead of its
creation.” Id. at 91 (adding that “[t]his would insulate records that contain information supplied,
perhaps even gleaned, from an external, non-agency source, even if the information represents
only a part of the record, as it does here”).
Regardless of what information may be supplied by outside actors, the WAVES and ACR
records are largely generated by the Secret Service, and are undisputedly obtained by the Secret
Service. Indeed, the records are generated specifically for use by the Secret Service. Therefore,
the requirement under FOIA that the records be “create[d] or obtain[ed]” is clearly met in this
case.
2. The Secret Service Controls the Records
The Court now moves on to the second prong of the “agency records” determination. In
addition to creating or obtaining the records, “the agency must be in control of the requested
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materials at the time the FOIA request is made.” Tax Analysts, 492 U.S. at 144-45 (internal
quotations omitted); see also Judicial Watch, Inc. v. Fed. Hous. Fin. Agency, No. 10-5349, 2011
WL 3375576, at *2 (D.C. Cir. Aug. 5, 2011). To meet this “control” requirement, the records
must have “come into the agency’s possession in the legitimate conduct of its official duties.”
Tax Analysts, 492 U.S. at 145.
To determine whether an agency is “in control” of the materials, the D.C. Circuit has
established a four-part test. The Court must consider “(1) the intent of the document’s creator to
retain or relinquish control over the records; (2) the ability of the agency to use and dispose of
the record as it sees fit; (3) the extent to which agency personnel have read or relied upon the
document; and (4) the degree to which the document was integrated into the agency’s record
system or files.” Judicial Watch, Inc. v. Fed. Hous. Fin. Agency, 2011 WL 3375576, at *2
(quoting Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996)).
Each of these considerations is taken up in turn below.
i. The Secret Service Intends to Relinquish Control
The first factor of the determination, intent, weighs in favor of the Secret Service’s
assertion that the records are not under agency control. See CREW, 527 F. Supp. 2d at 92 (“The
first factor, the intent of the document’s creator (here, the Secret Service) to retain or relinquish
control over the records, weighs in favor of the Secret Service.”). The Secret Service points the
Court to a Memorandum of Understanding (“MOU”), written in May 2006, to memorialize the
understanding of both the Secret Service and the White House Office of Records Management
(“ORM”) as to how the WAVES and ACR records were to be used, and who maintained an
interest in them. 3 Declaration of Donald E. White, dated April 20, 2010, (“White Decl.”) ¶ 12.
3
As noted in CREW, the MOU was executed after the Secret Service was previously sued for specific WAVES and
ACR records under the FOIA. 527 F. Supp. 2d. at 92 n.22 (“The Court regards this self-serving agreement with
9
The MOU is unequivocal in asserting that the control over WAVES and ACR records is at all
times maintained by the ORM and not the Secret Service. See MOU ¶ 17 (stating that the
WAVES and ACR records “are at all times Presidential Records” and “are not the records of an
‘agency’ subject to the Freedom of Information Act”). Consistent with this stated intent, it has
been the practice of the Secret Service to regularly transfer copies of the WAVES and ACR
records to the ORM. White Decl. ¶ 13. It is worth noting that the actions of the Secret Service
have sometimes been misaligned with its stated intent, however. For example, the Secret Service
has continued to maintain copies of the WAVES and ACR data after transfer. Id. According to
the Secret Service this retention has been “due to, among other things, then-pending litigation.” 4
Id.The stated intent of the Secret Service is unambiguously to relinquish control of the
records, however, and the Secret Service’s actions are not necessarily inconsistent with that
intent. The “intent” factor of the analysis, therefore, weighs in the defendant’s favor. See
CREW, 527 F. Supp. 2d at 93 (“[T]he Secret Service’s stated intent is clear: it does not intend to
retain control over these records once the visitor has left the White House Complex . . . . Because
the Secret Service’s actions are not inconsistent with its stated intent, the first factor weighs in its
favor.”).
ii. The Secret Service is Able to Use and Dispose of the Records
The Court finds, however, that the second factor, the ability of the Secret Service to “use
and dispose” of the records as it sees fit, weighs against the Secret Service. The Secret Service is
skepticism. The MOU was executed after the Secret Service created many of the records and after the Secret Service
was sued for the records.”).
4
The defendant does not explain specifically what litigation was “then-pending.” See White Decl. ¶¶ 11, 13. The
Court assumes that the referenced litigation may consist of the cases, such as CREW and Washington Post, cited in
this opinion. CREW, 527 F. Supp. 2d 76; Wash. Post, 459 F. Supp. 2d 61.
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able to, and does, use the WAVES and ACR records, and also maintains a reasonable amount of
flexibility to dispose of the records.
According to the Secret Service’s own declarations, the Secret Service uses the records
for two main purposes, “to perform background checks to determine the existence of any
protective concern” and “to verify the admissibility at the time of visit.” Droege Decl. ¶ 5.
Therefore, the Secret Service’s ability to use the records is clear.
The Secret Service is quick to argue that it does not have the ability to dispose of the
records as it sees fit. It is the practice of the Secret Service regularly to transfer copies of the
WAVES and ACR records to the ORM. Droege Decl. ¶ 10. This transfer practice, combined
with the narrowly constrained use of the records by the Secret Service, was enough for another
judge of this Court to conclude that “‘the ability of the agency to use and dispose of the record as
it sees fit’ is quite limited.” Wash. Post, 459 F. Supp. 2d at 70 (quoting United We Stand Am.,
Inc. v. IRS, 359 F.3d 595,599 (D.C. Cir. 2004)). Regardless of its stated transfer policy,
however, the Secret Service has consistently continued to maintain copies of these records on its
systems, and has not sufficiently explained any restriction on its use or disposition of these
documents.
The Secret Service claims that “because the President and Vice President retain control of
WAVES and ACR records (as set forth in the MOU), the Secret Service lacks disposal authority
over these records.” Def.’s Mem. at 19-20. In other words, the Secret Service argues that it is
unable to dispose of the records freely because they are ultimately White House records and not
agency records. This argument is circular. The claimed restrictions on disposal stem from the
defendant’s assumption that the documents are under Presidential control—the exact point that
the defendant seeks to prove to establish that the documents are not subject to FOIA. See
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CREW, 527 F. Supp. 2d at 94 (“Of course, the assumption which this argument rests on—that
these documents are under the ‘exclusive legal control of the President and Vice-President’—is
the focal point of this suit. The Secret Service is assuming the very point it is trying to prove.”).
Therefore, the stated intent of the Secret Service to transfer the records to the ORM and
then remove them from its system is not in itself dispositive of the Secret Service’s ability to use
and dispose of the records freely. See CREW, 527 F. Supp. 2d at 94 (“Although an agency’s
treatment of documents for preservation purposes may provide some guidance . . . an agency
should not be able to alter its disposal regulations to avoid the requirements of FOIA.”) (quoting
Bureau of Nat’l Affairs v. U.S. Dep’t of Justice, 742 F.2d 1484, 1493 (D.C. Cir. 1984)). While
the Court duly recognizes that the Secret Service’s freedom to use and dispose of the records is
somewhat circumscribed, this portion of the calculus does not weigh in the Secret Service’s
favor.
iii. Secret Service Personnel Have Read and Relied Upon the Documents
The third factor—the extent to which Secret Service personnel have read or relied upon
the documents—cuts strongly against the Secret Service. While the Secret Service does not deny
reliance upon the WAVES and ACR records, it argues that the purposes for which it relies upon
the documents are limited: Namely, “(1) to enable the Secret Service to perform background
checks . . . and (2) to enable the Secret Service to verify the admissibility at the time of visit.”
Droege Decl. ¶ 5. This “limited” reliance is directly tied to the purpose of the records in the first
place. The WAVES and ACR records are created—above all else—to facilitate the precise uses
for which the Secret Service relies upon them. See Wash. Post, 459 F. Supp. 2d at 71 (“While
the defendant is correct that the Secret Service’s use of the WAVES records is limited, the
defendant fails to recognize that the very purpose of the WAVES records is limited. . . . [T]he
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inquiry as to the agency’s use of a document is tethered to the purpose behind the records’
creation in the first instance.” (internal citations omitted)). Therefore, the fact that the Secret
Service uses the documents for the limited purpose for which they were created strongly suggests
the documents are “agency records” under FOIA.
iv. The Records are Integrated into the Secret Service’s Record System
The final factor, the degree to which the records were integrated into the Secret Service’s
record system, also weighs against the Secret Service. The Secret Service acknowledges that
“WAVES and ACR records do reside on the Secret Service’s servers as part of the [White House
Access Control System] data system.” Def.’s Mem. at 21; see also White Decl. ¶ 7. To resist
the characterization of this process as “integration” into the Secret Service’s record system, the
Secret Service notes that the WAVES and ACR records data are downloaded and burned onto
CDs for transfer to the ORM every 30 to 60 days. White Decl. ¶ 11. Additionally, it is the
“intent” of the Secret Service to erase the WAVES records from their servers after transfer, and
the Secret Service asserts that “active WAVES data on the servers older than 60 days are purged
daily and overwritten on the servers.” Id. ¶ 11.
The fact that the records are transferred is not dispositive in determining whether the
records are integrated, however. See CREW, 527 F. Supp. 2d at 96 (“The length of time a record
is saved skirts the salient issue of whether it was integrated into the agency’s record system in
the first place.”). It is also worth noting that the Secret Service has “retained copies” of all of the
WAVES and ACR data in question. White Decl. ¶ 11. Even if the Court assumes that all of the
records in question have, in fact, been deleted from the Secret Service’s computer system since
their initial use, the Secret Service does not contest that the records were at one point an
integrated portion of its computer system. See CREW, 527 F. Supp. 2d at 96 (“[T]he notion that
13
an electronic record is not integrated into the Secret Service’s computer system simply because
the agency deletes the records 30 or 60 days later misses the point.”). Therefore, the Court finds
that the WAVES and ACR records were substantially integrated into the Secret Service’s record
system.
v. Balancing the Factors
The Court finds that, while the intent of the Secret Service is consistent with its assertion
that the WAVES and ACR records are not “agency records,” the other three factors all cut in the
opposite direction. Consistent with other decisions in this District, “the Court concludes that use
trumps intent.” CREW, 527 F. Supp. 2d at 97. Therefore, the WAVES and ACR records are
properly considered “agency records” subject to FOIA.
B. Constitutional Avoidance
The Secret Service also urges the Court to construe FOIA not to cover the WAVES and
ACR records to avoid raising serious Constitutional questions. The Secret Service asserts that
FOIA coverage of WAVES and ACR records would raise serious separation of powers concerns
because it would amount to “a substantial intrusion on the confidentiality necessary for the
President and Vice President to discharge their constitutional duties.” Def.’s Mem. at 24.
The Constitutional avoidance doctrine is not applicable here because the Court is not
faced with the interpretation of an ambiguous statute. The Supreme Court has explained that “if
an otherwise acceptable construction of a statute raises serious constitutional problems, and [] an
alternative interpretation of the statute is fairly possible, [courts] are obligated to construe the
statute to avoid such problems.” INS v. St. Cyr, 533 U.S. 289, 299 (2001). The Court agrees,
however, with the previous holdings of other judges in this District that, even if defendant’s
concerns about the “intrusion on the confidentiality necessary for the President and Vice
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President to discharge their constitutional duties” are valid ones, they “do not serve as a license
for the court to transmute the meaning of an unambiguous statute.” Wash. Post, 459 F. Supp. 2d
at 72; see also CREW, 527 F. Supp. 2d at 98-99 (“Because [Constitutional avoidance] applies
only where the statute is open to more than one interpretation, however, it has no application in
the absence of statutory ambiguity.” (internal quotations and citations omitted)).
Additionally, the Court is skeptical of the underlying premise that the inclusion of
WAVES and ACR records under FOIA raises any serious Constitutional problems. As has
previously been noted by courts in this District, “[t]o the extent that a visitor record might, if
publicly released, disclose confidential presidential communications, the Secret Service has a
ready recourse in Exemption 5 [of FOIA],” which exempts privileged documents from
disclosure. CREW, 527 F. Supp. 2d at 99. Therefore, since the statutory language is
unambiguous in relation to this issue, and the FOIA has built-in exemptions that mitigate the risk
of the precise separation of powers concerns the defendant raises, the Court rejects defendant’s
interpretive argument.
C. National Security Concerns
Lastly, the Secret Service argues that, even if WAVES and ACR records are subject to
FOIA—and the Court holds that they are—it would be “virtually impossible” for the Secret
Service to process the plaintiff’s FOIA request with respect to records created between January
20, 2009 and September 15, 2009 without potentially compromising national security interests.
Def.’s Mem. at 28. While the Secret Service has been able to process FOIA requests for
WAVES and ACR records in the past, defendant argues that the “unprecedentedly broad” nature
of this request would make it “virtually impossible for the White House . . . to identify and
segregate” sensitive information from that which can be disclosed. Id. at 28. The Secret Service
15
appears to argue that it should not be required to even process the FOIA request simply because
the request is “massively expansive.” Def.’s Mem. at 32. The Secret Service notes that, prior to
the adoption of the White House’s voluntary WAVES disclosure program on September 15,
2009, records in the WAVES database that implicated national security concerns were not
flagged or identified in any way. See Declaration of Nathan D. Tibbits, dated April 19, 2010
(“Tibbits Decl.”) ¶¶ 14-16.5 Thus, the Secret Service objects to the burden that would be
imposed on it and other government officials if they must review “hundreds-of-thousands of
visitor records [created between January and September 2009], entry-by-entry, to determine
whether it is necessary to exclude specific records of particular visits from disclosure.” Def.’s
Mem. at 32. While the Court is sensitive to the burdens raised by the plaintiff’s broad brush
request for “all” records of a certain type over a nine-month period, including the need to review
such records for applicable exemptions, the Court is not persuaded that the plaintiff’s request
requires a blanket rejection.
The Secret Service first asserts that “a subset of these records would unquestionably be
exempt from release pursuant to various FOIA exemptions, including Exemption 5.” Id. at 27.
In support of this assertion, the Secret Service states that “although WAVES and ACR records
are not classified, a broad-based disclosure of WAVES records could have serious consequences
for United States national security interests.” Id. at 28 (citing CIA v. Sims, 471 U.S. 159, 178
(1985), Edmonds v. Dep’t of Justice, 405 F. Supp. 2d 23, 33 (D.D.C. 2005); ACLU v. Dep’t of
Justice, 321 F. Supp. 2d 24, 37 (D.D.C. 2004)). The Secret Service also cites a case from the
Central District of California in which the district court upheld an agency’s withholding of
5
The version of the Tibbits Declaration filed on the record was heavily redacted because it contained classified
material. See ECF No. 13-3. The defendant filed an unredacted copy of the declaration with the Court, which the
Court has reviewed in camera. The Court’s decision takes into account the information conveyed in the classified
portions of the declaration.
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information where the agency “was unable to determine which records in two databases would
be exempt from disclosure under FOIA, because those databases ‘do not contain any
information’ necessary to make that determination.” Def.’s Mem. at 28-29 (quoting L.A. Times
v. U.S. Dep’t of Labor, 483 F. Supp. 2d 975, 986 (C.D. Cal. 2007)). These arguments are
premature. In the cases relied upon by the defendant, the courts were ruling upon the propriety
of government assertions of specific FOIA exemptions in response to FOIA requests. See CIA v.
Sims, 471 U.S. at 178 (Exemption 3), Edmonds, 405 F. Supp. 2d at 32-33 (Exemption 1,
including an assertion of classification based on a “mosaic” theory); ACLU v. Dep’t of Justice,
321 F. Supp. 2d at 35-37 (same); L.A. Times, 483 F. Supp. 2d at 981-86 (Exemption 6). In this
case, the defendant has yet to assert any exemptions specifically. While the Court will require
defendant to process the FOIA request, “it is entirely possible that the government will never
have to turn over a single document given that the Secret Service may yet be entitled to withhold
some or all of the documents under one or more of FOIA’s nine exemptions.” Citizens for
Responsibility and Ethics in Wash. v. U.S. Dep’t of Homeland Sec., 532 F.3d 860, 863 (D.C. Cir.
2008) (hereinafter, “CREW Appeal”) (reviewing an appeal of the district court’s denial of a
similar government request for summary judgment and dismissing the appeal for lack of
jurisdiction).
The Secret Service denies that it should be required to process the FOIA request because
certain records relating to appointments made by members of the President’s National Security
Staff (“NSS”) would implicate national security concerns, and because “it is not feasible to re-
accumulate the necessary information to determine which appointments between January 20,
2009 and September 15, 2009 could harm our Nation’s national security interests if publicly
disclosed.” Def.’s Mem. at 27-30. The defendant then goes on to generally assert that “review of
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WAVES records would not end with those generated by the NSS,” pointing to other components
of the Executive Office of the President that also schedule meetings concerning national security.
Id. at 30 (citing Tibbits Decl. ¶ 36). At no point does the Secret Service assert, however, that
there are not at least some records implicated by plaintiff’s FOIA request that could be easily
searched for, separated out, and disclosed without raising national security concerns. For
example, there may be certain White House components whose visitors never implicate national
security concerns.6 See Pl.’s Reply in Supp. of Mot. for Partial Summ. J. and Opp’n to Def.’s
Cross-Mot. for Summ. J. at 10. Thus, while “there are some limits on what an agency must do to
satisfy its FOIA obligations,” the defendant has not met its burden to establish that the search
requested by the plaintiff is so unreasonable as to require a blanket rejection. See Nation
Magazine, Wash. Bureau v. U.S. Customs Service, 71 F.3d 885, 891 (D.C. Cir. 1995) (finding it
unreasonable to require agency to search through 23 years of unindexed files for records); cf.
Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011)
(reversing in part district court’s grant of summary judgment for agency because agency
declarations failed to address the adequacy of search of email backup tapes and archives).
Therefore, the proper course of action by the Secret Service is duly to process plaintiff’s
FOIA request, disclose all segregable, nonexempt records, and then assert specific FOIA
exemptions for all records it seeks to withhold. See CREW Appeal, 532 F.3d at 863. Of course,
the Secret Service may well be able to assert certain FOIA exemptions over large numbers of
documents covered by the plaintiff’s request. See, e.g., Edmonds, 405 F. Supp. 2d at 32-33
6
Defendant’s reply brief suggests that Secret Service records relating to visits to White House components that do
not implicate national security would still require a burdensome review “to identify those records reflecting non-
national security meetings that are nonetheless sensitive for other reasons and are subject to executive privilege”
Def.’s Reply in Supp. of Cross-Mot. for Summ. J. at 18 (referring to FOIA Exemption 5, which relates to civil
privileges). This argument further underscores the need for the defendant to invoke particular FOIA exemptions and
to adduce evidence in support of those exemptions before the Court can rule on their applicability. Ancient Coin
Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 509 (D.C. Cir. 2011) (“An agency withholding responsive
documents from a FOIA request bears the burden of proving the applicability of the claimed exemptions.”).
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(upholding agency’s withholding of information under FOIA exemption where disclosure would
release a “mosaic” of classified information); L.A. Times, 483 F. Supp. 2d at 986 (finding that a
properly asserted FOIA exemption also covered additional records that were not reasonably
segregable from the exempt material contained in the same database). At this stage, however,
the defendant has not met its burden to show that the requested material either falls within a
FOIA exemption or would be unreasonably burdensome to search.
IV. CONCLUSION
For the reasons detailed above, plaintiff’s motion for partial summary judgment is
GRANTED and defendant’s cross-motion for summary judgment is DENIED.  Within twenty
(20) days of the issuance of this Memorandum Opinion and the accompanying Order, the parties
are directed to meet and confer and to file a joint report proposing a schedule for the remainder
of this litigation. The joint report shall also address whether, in light of this Court’s ruling on the
applicability of FOIA to the records at issue, and given the likelihood that at least some of those
records will be covered by FOIA exemptions, the parties are able to agree to resolve this case
without the Court’s further intervention or to narrow the requests at issue.
DATED: August 17, 2011 /s/ Beryl A. Howell
BERYL A. HOWELL
United States District Judge
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