Judicial Watch, Inc. v. United States Secret Service , 726 F.3d 208 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 18, 2012 Decided August 30, 2013
No. 11-5282
JUDICIAL WATCH, INC.,
APPELLEE
v.
UNITED STATES SECRET SERVICE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-02312)
Mark B. Stern, Attorney, U.S. Department of Justice, argued
the cause for appellant. With him on the briefs were Tony West,
Assistant Attorney General, Ronald C. Machen Jr., U.S.
Attorney, Beth S. Brinkmann, Deputy Assistant Attorney
General, and Michael S. Raab and Abby C. Wright, Attorneys.
Brad P. Rosenberg, Trial Attorney, entered an appearance.
James F. Peterson argued the cause and filed the brief for
appellee. Paul J. Orfanedes entered an appearance.
David Murray was on the brief for amici curiae Bloomberg
L.P., et al. in support of appellee.
David L. Sobel, Anne L. Weismann, and Melanie Sloan were
2
on the brief for amici curiae Citizens for Responsibility and
Ethics in Washington, et al. in support of appellee.
Before: GARLAND, Chief Judge, and SENTELLE and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: Judicial Watch filed a Freedom of
Information Act (FOIA) request with the Secret Service, seeking
records of every visitor to the White House Complex over a
period of seven months. The Secret Service denied the request,
arguing that the requested documents are not “agency records”
subject to disclosure under FOIA. The district court rejected
that argument and ordered the agency to release the records or
assert specific FOIA exemptions on a document-by-document
basis. We reverse in part and affirm in part.
In both the 1974 FOIA Amendments and the 1978
Presidential Records Act, Congress made clear that it did not
want documents like the appointment calendars of the President
and his close advisors to be subject to disclosure under FOIA.
Granting Judicial Watch’s request for certain visitor records,
however, would effectively disclose the contents of those
calendars. For the reasons discussed below, we conclude that
such records are not “agency records” within the meaning of
FOIA.
In addition to the President and his advisors, the White
House Complex also houses components that Congress did
intend to subject to FOIA. We conclude that records of visits to
those components are “agency records” subject to disclosure
under the Act.
3
I
In 1951, the year after two men attempted to assassinate
President Truman just across the street from the White House,
Congress permanently authorized the Secret Service to protect
the President and Vice President. See Pub. L. No. 82-79, § 4, 65
Stat. 121, 122 (1951) (codified at 18 U.S.C. § 3056(a)). Upon
signing the legislation, Truman reportedly remarked: “Well, it
is wonderful to know that the work of protecting me has at last
become legal.” PHILIP H. MELANSON, THE SECRET SERVICE:
THE HIDDEN HISTORY OF AN ENIGMATIC AGENCY 54 (2002).1
In 1984, three years after an attempt on the life of President
Reagan, Congress made acceptance of such protection by the
President, Vice President, President-elect, and Vice President-
elect mandatory. See Pub. L. No. 98-587, 98 Stat. 3110 (1984)
(codified at 18 U.S.C. § 3056(a)).2
1
The Secret Service began protecting presidents part-time in
1894, and full-time (albeit with only two officers) after the
assassination of President William McKinley in 1901. See Secret
Service History, U.S. SECRET SERVICE, http://www.secretservice.gov/
history.shtml (2012). Until 1951, the agency’s authority to protect the
President derived solely from annual congressional appropriations to
the Department of the Treasury, of which it was then a component. Id.In 2002, the Secret Service became a component of the Department of
Homeland Security. See Homeland Security Act of 2002, Pub. L. No.
107-296, § 821, 116 Stat. 2135, 2224 (codified at 6 U.S.C. § 381).
2
The statute also authorizes Secret Service protection for other
individuals, including members of the President’s family, former
presidents, and major presidential candidates. It provides that
protection “may be declined” by those individuals, but does not extend
the option to the President, Vice President, President-elect, or Vice
President-elect. 18 U.S.C. § 3056(a).
4
The Secret Service’s authorizing statute extends protection
not only to the persons of the President and Vice President, but
also to the buildings in which they live and work, including the
White House Complex. See 18 U.S.C. § 3056A(a)(1)-(2); White
Decl. ¶ 5. The White House Complex includes the White
House, the Eisenhower Executive Office Building (EEOB), their
surrounding grounds, and the New Executive Office Building.
White Decl. ¶ 4. Those buildings house offices for the President
and the Vice President, as well as their staff and advisors.
In order to carry out its statutory responsibilities, the Secret
Service monitors and controls access to the White House
Complex. It accomplishes this task through an electronic system
known as the White House Access Control System (WHACS).
WHACS has two principal components: the Worker and Visitor
Entrance System (WAVES) and the Access Control Records
System (ACR).
WAVES records are generated in the following way.
Generally, when the President, Vice President, or a member of
their staffs wants to receive a visitor at the White House
Complex, an authorized White House pass holder must submit
information about the visitor and visit to the Secret Service. See
Mem. of Understanding Between White House Office of
Records Mgmt. & U.S. Secret Serv. Records Mgmt. Program ¶ 4
(May 17, 2006) (MOU). That information includes (inter alia)
the visitor’s name, the date and location of the planned visit, and
the name of the pass holder submitting the request. Id.
“Ordinarily, this identifying information is provided to the
Secret Service electronically. An authorized . . . pass holder
enters the information into a computer that automatically
forwards it to the Secret Service for processing.” Droege Decl.
¶ 6. The information may also be provided to the Secret Service
in other ways, including by telephone and email, in which case
5
Secret Service personnel transmit the information electronically
to the WHACS server. Id.; White Decl. ¶ 7.3
Once a visitor is cleared into the White House Complex, he
or she is generally issued a badge. ACR records are generated
(and WAVES records updated) whenever the visitor swipes the
badge over one of the electronic pass readers located at the
White House Complex’s entrances and exits. MOU ¶ 5; Droege
Decl. ¶ 7; White Decl. ¶¶ 9, 10. ACR records include the pass
holder’s name, the time and date of the swipe, and the post at
which the swipe was recorded. MOU ¶ 5.
According to the government, the information contained in
WHACS records is provided to and used by the Secret Service
“for two limited purposes”: to perform a background check on
the visitor, and to verify the visitor’s admissibility at the time of
the visit. MOU ¶ 12; White Decl. ¶ 7. Once the visit ends, the
information “has no continuing usefulness to the Secret
Service.” MOU ¶ 13.
Because the Secret Service has “no continuing interest” in
the information, “[s]ince at least 2001, it has been [its] practice
. . . to transfer newly-generated WAVES records” to the White
House every 30 to 60 days on compact discs. White Decl. ¶ 11;
Droege Decl. ¶ 10; see MOU ¶ 14; Lyerly Decl. ¶ 10 (May
2006). The Secret Service erases the transferred records from
the WHACS servers and overwrites them with new records.
MOU ¶ 14; White Decl. ¶ 11. Prior to October 2004, the Secret
Service did not keep copies of the transferred WAVES records.
Lyerly Decl. ¶¶ 10, 11 (May 2006); see MOU ¶ 14. In October
2004, however, the Secret Service began retaining copies of the
3
The Secret Service may add additional information to WAVES
records that it learns through a background check. Lyerly Decl. ¶ 8
(Sept. 2006); White Decl. ¶¶ 7, 8.
6
transferred WAVES records on compact discs, due in part to
then-pending litigation. MOU ¶ 16; Lyerly Decl. ¶ 13 (Sept.
2006); Droege Decl. ¶ 10.
“At least as early as 2001 (at the end of the Clinton
Administration), and upon revisiting the issue in 2004, the
Secret Service and the White House recognized and agreed that
ACR records should be treated in a manner generally consistent
with the treatment of WAVES records.” White Decl. ¶ 13;
Droege Decl. ¶ 11. In particular, “[t]he White House and the
Secret Service . . . determined that ACR records should be
transferred to the [White House] and deleted from the Secret
Service’s computers like WAVES records.” White Decl. ¶ 13;
see MOU ¶ 15. Since at least 2006, the Service has transferred
ACR records to the White House, generally every 30 to 60 days.
Droege Decl. ¶ 11; see White Decl. ¶ 13 (stating that ACR
records dating from 2001 were also transferred in 2006). Once
again, however, the Service has retained copies of the records
due in part to pending litigation. Droege Decl. ¶ 11; White
Decl. ¶ 13; MOU ¶ 15.
The volume of FOIA litigation regarding White House
visitor records increased in 2006. In that year, a FOIA request
was filed for all WHACS records pertaining to visits scheduled
with Vice President Dick Cheney or his staff. See Wash. Post
v. Dep’t of Homeland Sec., 459 F. Supp. 2d 61, 64 (D.D.C.
2006). A steady march of similar requests followed. They
included requests for records of every visit by lobbyist Jack
Abramoff, see Judicial Watch, Inc. v. U.S. Secret Serv., 579 F.
Supp. 2d 143, 145 (D.D.C. 2008); every visit by lobbyist
Stephen Payne, Citizens for Responsibility & Ethics in Wash.
(CREW) v. U.S. Dep’t of Homeland Sec., 592 F. Supp. 2d 127,
129 (D.D.C. 2009); and every visit by eighteen health care
7
executives,4 to name only a few.5 The Secret Service refused
each request, asserting that WAVES and ACR records are not
“agency records” subject to FOIA, but rather are “Presidential
records” subject to the more restrictive disclosure regime
established by the Presidential Records Act (PRA), 44 U.S.C.
§§ 2201 et seq. See, e.g., CREW, 592 F. Supp. 2d at 131; Wash.
Post, 459 F. Supp. 2d at 65.
In May 2006, the White House and the Secret Service
executed a Memorandum of Understanding (MOU). The MOU
memorialized the parties’ historical practice and intentions
regarding WHACS records, as described above. It also stated
the parties’ joint “agreement” that WHACS records are
“Presidential Records,” and “are not the records of an ‘agency’
subject to the Freedom of Information Act.” MOU ¶ 17.
In 2008, a suit arising out of a FOIA request for WHACS
records reached this court for the first time. The request sought
records of every visit by nine “conservative Christian leaders.”
CREW v. U.S. Dep’t of Homeland Sec., 527 F. Supp. 2d 76, 78
(D.D.C. 2007). We dismissed that appeal for lack of
jurisdiction. See CREW v. U.S. Dep’t of Homeland Sec., 532
F.3d 860, 868 (D.C. Cir. 2008). After further proceedings in the
district court, the parties settled the dispute. See Joint Mot. to
Vacate, CREW v. U.S. Dep’t of Homeland Sec., No. 06-1912
(D.D.C. Sept. 9, 2009).
4
See Letter from Gregory B. Craig, Counsel to the President, to
Anne L. Weismann (Sept. 3, 2009) (Craig Letter), available at
http://whitehouse.gov/assets/blog/9 3 09 Ltr to Weismann.pdf.
5
For other such requests, see Judicial Watch, Inc. v. U.S. Secret
Serv., 579 F. Supp. 2d 151, 152 (D.D.C. 2008) (every visit by any of
eight named lobbyists); Craig Letter (every visit by sixteen specified
coal industry executives).
8
The present litigation involves the latest and broadest FOIA
request for WHACS records. On August 10, 2009, Judicial
Watch asked the Secret Service for “[a]ll official visitors logs
and/or other records concerning visits made to the White House
from January 20, 2009 to present.” The Service denied the
request on October 8, 2009, reiterating its position that WAVES
and ACR records are not “agency records” subject to FOIA, but
rather are “Presidential records” subject to the PRA. The
Service noted, however, that Judicial Watch could secure
discretionary release of some of those records pursuant to a
voluntary disclosure policy that the Obama administration had
announced the previous month. See The White House, White
House Voluntary Disclosure Policy: Visitor Access Records
(Sept. 4, 2009), http://www.whitehouse.gov/
VoluntaryDisclosure (J.A. 42).6
On December 7, 2009, Judicial Watch filed suit to compel
disclosure pursuant to FOIA. Thereafter both sides moved for
summary judgment. The district court ruled in favor of Judicial
6
The Obama administration announced that, going forward, it
would release most WAVES and ACR records 90 to 120 days after
they are created. The policy excepts the release of records that would
threaten national security or the security of staff, reveal particularly
sensitive meetings, or disclose personal guests of the families of the
President or Vice President. To implement the policy, White House
Complex staffers who submit visitor information must designate visits
regarded as sensitive. The White House stated that the new policy
would not apply to records created before September 15, 2009 because
it would be too difficult to retroactively sort those earlier records,
which do not include such designations. See Tibbits Decl. ¶¶ 15-16,
27-37. But the White House said it would respond to individual
requests seeking records created between January 20, 2009 and
September 15, 2009, if the requests “are reasonable, narrow, and
specific.” See White House Voluntary Disclosure Policy,
http://www.whitehouse.gov/VoluntaryDisclosure.
9
Watch. See Judicial Watch, Inc. v. U.S. Secret Serv., 803 F.
Supp. 2d 51 (D.D.C. 2011). The court held that WHACS
records qualify as “agency records” subject to FOIA, and it
rejected the Secret Service’s contentions that disclosure would
raise separation-of-powers concerns and place impermissible
burdens on senior White House advisors. Id. at 60-62. The
Secret Service then filed an appeal pursuant to 28 U.S.C.
§ 1292(a)(1), and the district court issued a stay of its order
pending appeal. See Order, Judicial Watch, Inc. v. U.S. Secret
Serv., No. 09-2312 (Nov. 14, 2011).7
II
Under FOIA, agencies must make requested records
available “to any person,” unless one of nine specific
exemptions applies. 5 U.S.C. § 552(a)(3)(A); see id.§ 552(b)(1)-(9). The Act grants federal district courts
jurisdiction “to order the production of any agency records
improperly withheld from the complainant.” Id. § 552(a)(4)(B)
(emphasis added). The question at issue on this appeal is
whether WHACS records are “agency records.”
7
A FOIA disclosure order is injunctive in nature, and is therefore
immediately appealable as an interlocutory order, if it “requires the
disclosure of documents for which the agenc[y] claim[s] no basis for
non-disclosure beyond the argument already rejected by the district
court.” Judicial Watch, Inc. v. Dep’t of Energy, 412 F.3d 125, 128
(D.C. Cir. 2005); see CREW, 532 F.3d at 863-64. In this case, the
district court directed the Secret Service to disclose any records that
are not subject to a FOIA exemption, see 5 U.S.C. § 552(b)(1)-(9), and
that can be identified as such without undue burden. Judicial Watch,
803 F. Supp. 2d at 62. Because the Service represents that it has
identified at least one record for which it has no basis for non-
disclosure beyond the arguments already rejected by the district court,
see Ulmer Decl. ¶ 4; Oral Arg. Recording at 14:30, we have
jurisdiction under 28 U.S.C. § 1292(a)(1).
10
A
We review the district court’s grant of summary judgment
on this question de novo. See Consumer Fed’n of Am. v. Dep’t
of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006). A court may
grant summary judgment only if there is “no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). On “summary judgment
the inferences to be drawn from the underlying facts . . . must be
viewed in the light most favorable to the party opposing the
motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (internal quotation marks omitted). In
FOIA cases, “‘[s]ummary judgment may be granted on the basis
of agency affidavits if they contain reasonable specificity of
detail rather than merely conclusory statements, and if they are
not called into question by contradictory evidence in the record
or by evidence of agency bad faith.’” Consumer Fed’n, 455
F.3d at 287 (quoting Gallant v. NLRB, 26 F.3d 168, 171 (D.C.
Cir. 1994)).
Although the district court ruled against the Secret Service,
it nonetheless relied heavily on both the 2006 MOU and
declarations by Secret Service and White House officials to
describe the purpose, generation, and use of WHACS records,
as well as the government’s intentions, understandings, and
practice regarding those records. See Judicial Watch, 803 F.
Supp. 2d at 53-54, 56-60. See, e.g., MOU ¶¶ 10-16; Droege
Decl. ¶ 12 (stating that the MOU “documented what was then
understood to be past practice and interests regarding WAVES
and ACR records”). Judicial Watch has never contested any of
those factual descriptions. And because the case was decided
against the Service on summary judgment, we are bound by
them. Oral Arg. Recording at 45:45 - 47:00 (acknowledgment
11
by Judicial Watch).8 We are not, however, bound by the MOU’s
legal assertions that WHACS records “are at all times
Presidential Records,” “are not the records of an ‘agency’
subject to [FOIA],” and “are under the exclusive legal custody
and control of the White House.” MOU ¶¶ 17-18.
B
As both the Supreme Court and this court have repeatedly
noted, while FOIA “limited access to ‘agency records,’” it “did
not provide any definition of ‘agency records.’” Forsham v.
Harris, 445 U.S. 169, 178 (1980); see U.S. Dep’t of Justice v.
Tax Analysts, 492 U.S. 136, 142 (1989); Consumer Fed’n, 455
8
See Pa. State Police v. Suders, 542 U.S. 129, 134 (2004)
(reciting the facts “in the light most favorable to” the respondent
“[b]ecause th[e] case was decided against [her] on the [petitioner’s]
motion for summary judgment”); Crooker v. Bureau of Alcohol,
Tobacco & Firearms, 670 F.2d 1051, 1054 n.7 (D.C. Cir. 1981)
(“Because [the appellant] did not contest the Government’s [factual]
assertions[,] . . . Rule 56(e) of the Federal Rules of Civil Procedure
requires this court to take the Government’s assertions as true. . . . In
other words, failure to raise a genuine issue as to a material fact
constitutes a concession that the uncontested fact is true for purposes
of summary judgment.”); see also Malik v. District of Columbia, 574
F.3d 781, 783 n.1 (D.C. Cir. 2009).
In a footnote to its brief, Judicial Watch appears to treat the MOU
with some skepticism, noting that it was executed by the Bush
Administration just four months after Judicial Watch and CREW
submitted their 2006 FOIA requests relating to visits by lobbyist Jack
Abramoff. See Judicial Watch Br. 10 n.3; see also Judicial Watch,
803 F. Supp. 2d at 58 n.3. Given the summary judgment posture of
this case, however, there is no room for such skepticism in our legal
analysis.
12
F.3d at 287; Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d
1060, 1067 (D.C. Cir. 1988), aff’d, 492 U.S. 136 (1989);
McGehee v. CIA, 697 F.2d 1095, 1106 (D.C. Cir. 1983).
Nonetheless, we do know two things that help us define the
scope of the term.
The first thing we know is that, as the Supreme Court held
in Kissinger v. Reporters Committee for Freedom of the Press,
Congress did not intend the word “agency” to include the
President, his “‘immediate personal staff[,] or units in the
Executive Office whose sole function is to advise and assist the
President.’” 445 U.S. 136, 156 (1980) (quoting H.R. REP. NO.
93-1380, at 232 (1974) (Conf. Rep.)). We have collectively
referred to those staff and units as the “Office of the President,”
Armstrong v. Exec. Office of the President, 1 F.3d 1274, 1295
(D.C. Cir. 1993); see also Kissinger, 445 U.S. at 156, and do so
here as well for ease of reference.9
Because the Office of the President is not an agency for
FOIA purposes, documents generated by staff or units within
that Office are “not ‘agency records’ when they [are] made.”
Kissinger, 445 U.S. at 156.10 It is therefore undisputed that a
9
As noted below, this court has held that records of the Vice
President and his immediate staff are likewise not agency records for
purposes of FOIA. See infra Part IV.A (citing Wilson v. Libby, 535
F.3d 697, 708 (D.C. Cir. 2008)); see also Schwartz v. U.S. Dep’t of the
Treasury, No. 00-5453, 2001 WL 674636 (D.C. Cir. May 10, 2001)
(unpublished order), aff’g 131 F. Supp. 2d 142, 147-48 (D.D.C. 2000);
Meyer v. Bush, 981 F.2d 1288, 1295 (D.C. Cir. 1993). We therefore
include them within the collective descriptor, “Office of the
President.”
10
Accord Tax Analysts, 492 U.S. at 143; Armstrong v. Exec.
Office of the President, 1 F.3d at 1295 (D.C. Cir. 1993); Meyer, 981
F.2d at 1293 n.3; McGehee, 697 F.2d at 1107 n.53; Ryan v. Dep’t of
13
requester could not use FOIA to compel the President or his
advisors to disclose their own appointment calendars or visitor
logs. See Oral Arg. Recording at 23:45 (acknowledgment by
Judicial Watch). In part, Congress exempted such records from
FOIA -- and later subjected them to the Presidential Records Act
instead -- in order to avoid serious separation-of-powers
concerns that would be raised by a statute mandating disclosure
of the President’s daily activities. See, e.g., Armstrong v. Bush,
924 F.2d 282, 290 (D.C. Cir. 1991); Ryan v. Dep’t of Justice,
617 F.2d 781, 788 n.19 (D.C. Cir. 1980).
The second thing we know is that not all documents in the
possession of a FOIA-covered agency are “agency records” for
the purpose of that Act. See Ryan v. Dep’t of Justice, 617 F.2d
781, 785 (D.C. Cir. 1980). As the Supreme Court instructed in
Tax Analysts, the term “agency records” extends only to those
documents that an agency both (1) “create[s] or obtain[s],” and
(2) “control[s] . . . at the time the FOIA request [was] made.”
492 U.S. at 144-45. From this instruction, we know that not all
records physically located at an agency are “agency records.”
See, e.g., Kissinger, 445 U.S. at 157-58 (summaries of Henry
Kissinger’s telephone conversations as National Security
Advisor that he brought from the White House to the State
Department); Consumer Fed’n, 455 F.3d at 288-93 (personal
appointment calendar kept on an agency computer); Goland v.
CIA, 607 F.2d 339, 344-48 (D.C. Cir. 1978) (congressional
hearing transcript in the possession of the CIA). Nor are all
documents that are generated by an agency “agency records.”
See United We Stand Am., Inc. v. IRS, 359 F.3d 595, 600-02
(D.C. Cir. 2004) (portions of IRS document generated in
response to a congressional request). Rather, to determine
whether a document is an agency record under Tax Analysts, we
must “focus[] on a variety of factors surrounding the creation,
Justice, 617 F.2d 781, 788 (D.C. Cir. 1980).
14
possession, control, and use of the document.” Consumer
Fed’n, 455 F.3d at 287 (quoting Bureau of Nat’l Affairs, Inc. v.
U.S. Dep’t of Justice, 742 F.2d 1484, 1490 (D.C. Cir. 1984)).
We discuss each of these points in greater detail in the
following two parts. In Part III, we examine the manner in
which Tax Analysts and the “control” tests this court has adopted
to implement the Court’s instruction apply to WHACS records.
In Part IV, we examine Congress’ intention to exclude the
President’s appointment calendars from FOIA, and the
importance of construing the Act to avoid the significant
separation-of-powers concerns that would arise if the Act were
construed in a way that effectively permitted requesters to
reconstruct those calendars. Both examinations lead us to
conclude that WHACS records that reveal visitors to the Office
of the President are not “agency records.”
There is a subset of WHACS records, however, that reveals
nothing about visits to the Office of the President. Those
records are generated by visits to components of the White
House Complex that are not part of that Office, and that are
themselves “agencies” covered by FOIA. We discuss those
WHACS records in Part V, and conclude that they are “agency
records” subject to FOIA.
III
As noted above, Tax Analysts instructs that a document is
not an “agency record” unless an agency both (1) “create[s] or
obtain[s]” it, and (2) “controls” it at the time of the FOIA
request. 492 U.S. at 144-45. Turning briefly to the instruction’s
first prong, we note some uncertainty as to which entity
“created” the WHACS records. That question was not at issue
in Tax Analysts, a case involving paper documents that were
created by one author, at one time, and in one place. See id. at
15
139-40 (FOIA request for district court tax opinions obtained by
the Department of Justice). The “creator” of an electronic
record, by contrast, is more ambiguous. WHACS records, for
example, exist only because a White House employee
specifically requested that a particular visitor be admitted to the
White House Complex. Most of those records were not
generated by or at the Secret Service, but rather by electronic
entries made at the White House Complex -- first by staff of the
Complex, and then by a visitor’s swipe. See supra Part I;
Judicial Watch Br. 7 (“ACR records are created when a visitor
swipes his or her pass upon entering or exiting the White House
Complex.”); cf. supra note 3 (describing additions the Secret
Service may make to WHACS records).
But we need not delve into the creation question more
deeply at this point because there is no dispute that the Secret
Service ultimately “obtained” the WHACS records, thus
satisfying the first prong of Tax Analysts. This leaves us with
the second prong: whether the Secret Service “controlled” the
records at the time of Judicial Watch’s FOIA request.
A
In the usual case, this circuit looks to four factors to
determine “whether an agency has sufficient ‘control’ over a
document to make it an ‘agency record.’” Tax Analysts, 845
F.2d at 1069. They are:
[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.
16
Id. The circuit first announced this test in our own decision in
the Tax Analysts case, which the Supreme Court subsequently
affirmed, albeit on different grounds. Since then, we have
reaffirmed the four-factor test on several occasions. See Judicial
Watch, Inc. v. Fed. Hous. Fin. Agency, 646 F.3d 924, 926-27
(D.C. Cir. 2011); United We Stand, 359 F.3d at 599; Burka v.
U.S. Dep’t of Health & Human Servs., 87 F.3d 508, 515 (D.C.
Cir. 1996).
This is the test upon which the district court relied in
granting summary judgment in favor of Judicial Watch, see
Judicial Watch, 803 F. Supp. 2d at 57-60, and it is the test that
Judicial Watch urges us to apply on appeal, see Judicial Watch
Br. 9; Oral Arg. Recording at 23:00.11 For reasons discussed in
Part III.B, we conclude that this test does not fully capture the
“control” issue in this case. Even by its own terms, however,
the four-factor test is indeterminate as applied to WHACS
records.
1. The district court found that “the first factor of the
determination, intent, weighs in favor of the Secret Service’s
assertion that the records are not under agency control.”
Judicial Watch, 803 F. Supp. 2d at 57. The MOU “is
unequivocal in asserting that the control over WAVES and ACR
records is at all times maintained by the [White House] and not
the Secret Service.” 803 F. Supp. 2d at 58. It further states that
“any information provided to the Secret Service” for the creation
of such records “is provided under an express reservation of
White House control.” MOU ¶ 19. And the requisite intent is
11
The Court’s decision in Tax Analysts stated that “control”
means “that the materials have come into the agency’s possession in
the legitimate conduct of its official duties.” 492 U.S. at 145. We
have regarded the four-factor test as a gloss on that statement. See
Judicial Watch v. Fed. Hous. Fin. Agency, 646 F.3d at 926-27.
17
present regardless of who is regarded as the records’ creator, as
the MOU provides that “the White House at all times asserts,
and the Secret Service disclaims, all legal control over any and
all WHACS records.” Id. ¶ 24.
For these reasons, we agree with the district court that “[t]he
‘intent’ factor of the analysis . . . weighs in the defendant’s
favor.” 803 F. Supp. 2d at 58. Judicial Watch does not dispute
the point. Judicial Watch Br. 8. Resolution of the remaining
three factors, however, is more complicated.
2. The district court concluded that the second factor, “the
ability of the agency to use and dispose of the records as it sees
fit,” weighs against the Secret Service. Judicial Watch, 803 F.
Supp. 2d at 58. We are not so sure. Although it is undisputed
that the Service has authority to use the records, it does not have
the ability to use and dispose of them “as it sees fit.” According
to the MOU, the Service may use the records for only “two
limited purposes”: “to perform background checks to determine
whether, and under what conditions, to authorize [a] visitor’s
temporary admittance to the White House Complex,” and “to
verify the visitor’s admissibility at the time of the visit.” MOU
¶ 12; see Droege Decl. ¶ 5. Likewise, the MOU provides that
the Service will transfer the records to the White House within
60 days of the visit, and then purge them from its system. MOU
¶ 14; see White Decl. ¶ 11. At least with respect to WAVES
records, this practice predates the MOU. See Droege Decl.
¶¶ 10-11. And while the agency began retaining copies of
WHACS records in 2004, it did so principally because of
pending litigation. See id.; MOU ¶ 16. It is plain that if the
current litigation ends in the Service’s favor, the agency will
revert to its prior practice of transferring all WHACS records to
the White House.
18
The district court characterized as “circular” the Secret
Service’s argument 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.’” Judicial Watch, 803 F. Supp. 2d at 59
(quoting Mem. in Support of Def.’s Cross-Motion for Summ. J.
at 19-20). The court thought the argument circular because it
viewed its validity as dependent upon the Service winning its
claim that the documents are not agency records. Id. We think
this misapprehends the Service’s argument.
In deciding whether a document is an agency record under
FOIA, we examine how the agency would treat the records in its
normal course of operations, in the absence of pending FOIA-
related litigation. Cf. Kissinger, 445 U.S. at 151-52 (“Most
courts which have considered the question have concluded that
the FOIA is only directed at requiring agencies to disclose those
‘agency records’ for which they have chosen to retain
possession or control.” (emphasis added)). The Secret Service
has pointed to evidence that demonstrates restrictions on its
ability to use and dispose of WHACS records: a longstanding
practice of turning all such records over to the White House,
Droege Decl. ¶¶ 10-11, and a written agreement restricting the
Service from using and retaining those records in ways other
than those specified therein, MOU ¶¶ 12-14. As we explained
in United We Stand -- and as we discuss in more detail in
Section III.B -- restrictions on use and disposal imposed by a
governmental entity not covered under FOIA may have a
substantial bearing on the second Tax Analysts factor. See
United We Stand, 359 F.3d at 600; Goland, 607 F.2d at 347(examining “the conditions attached to [a document’s]
possession” by its creator).
3. The district court concluded that “the third factor -- the
extent to which Secret Service personnel have read or relied
19
upon the documents -- cuts strongly against the Secret Service.”
Judicial Watch, 803 F. Supp. 2d at 59. With this, we agree. It
is true, as the Secret Service argues, that its personnel read and
rely upon the documents only for the limited purposes the
records serve: to enable the Service to perform background
checks and verify admissibility at the time of a visitor’s
entrance. But the agency reads and relies upon the documents
for those purposes without restriction, and the third factor
requires no more.
4. The final of the four factors is “the degree to which the
document[s] w[ere] integrated into the [Secret Service’s] record
system or files.” Tax Analysts, 845 F.2d at 1069. The district
court concluded that this factor “weighs against the Secret
Service.” Judicial Watch, 803 F. Supp. 2d at 60. Given the
Service’s acknowledgment that “WAVES and ACR records do
reside on the Secret Service’s servers as part of the [WHACS]
data system,” id. (quoting Mem. of Law in Support of Def.’s
Cross-Motion for Summ. J. at 21); see Lyerly Decl. ¶¶ 19, 20
(Sept. 2006), we agree that the records were in the agency’s files
at least at one time.
But we have some reservations about the degree to which
they were or are integrated into the Secret Service’s overall
record system. The WHACS computer servers are physically
located in the White House Complex (in the EEOB), and they
contain WAVES- and ACR-related data only. Nelson Decl.
¶ 3.12 Although WAVES and ACR records are uploaded to the
WHACS servers when they are created, they are removed from
those servers within 60 days. See MOU ¶¶ 14-15; White Decl.
12
Both the primary and secondary (backup) WHACS servers are
located in the EEOB. A tertiary server is located at a Secret Service
location as a “backup to a backup” in case of an emergency. Nelson
Decl. ¶ 3.
20
¶ 11 (stating that [WHACS] records are downloaded and burned
onto CDs for transfer to the White House every 30 to 60 days,
and that “active WAVES data on the servers older than 60 days
are purged daily and overwritten on the servers”); Droege Decl.
¶ 11 (regarding ACR records). Due to pending litigation, it
appears that the documents are thereafter transferred to compact
disc storage, where they are no longer used by the Service.
MOU ¶ 16; Droege Decl. ¶¶ 10, 11. And but for the pending
litigation, they would be removed from the Service’s files
entirely. Lyerly Decl. ¶ 26 (Sept. 2006).
5. In sum, we conclude that one of the factors in the four-
factor control test unambiguously favors the Secret Service’s
position, one unambiguously favors Judicial Watch’s position,
and two are relatively uncertain. This circuit’s descriptions of
the four-factor test do not make clear what to do when the
factors point in different directions, with different intensities.
Nor do our descriptions make clear whether the factors should
receive equal weight. In Tax Analysts itself, we suggested that
“all four factors” must be present before “an agency has
sufficient ‘control’ over a document to make it an ‘agency
record.’” 845 F.2d at 1069. But we have also subsequently
described the test as a “totality of the circumstances test.”
Consumer Fed’n, 455 F.3d at 287 (quoting Bureau of Nat’l
Affairs, 742 F.2d at 1490).
Our past application of the test reveals its considerable
indeterminancy. In some cases, we have heeded the suggestion
in Tax Analysts, finding that documents were not “agency
records” when fewer than all four factors pointed in that
direction.13 In other cases, we have found that documents were
13
See Judicial Watch, Inc. v. Fed. Hous. Fin. Agency, 646 F.3d at
928 (holding that documents transferred to FHFA by entities for which
it was the conservator were not agency records, notwithstanding the
21
“agency records” even though fewer than four factors indicated
as much.14
Accordingly, if the four-factor test were the only relevant
consideration, we would be left with an uncertain result. That
uncertainty would redound to the benefit of Judicial Watch, in
light of the Supreme Court’s instruction that the “burden is on
the agency to demonstrate, not the requester to disprove, that the
materials sought are not ‘agency records,’” Tax Analysts, 492
U.S. at 142 n.3. But the four-factor test is not the only test
relevant to the FOIA request at issue in this case. Rather, we
have indicated that a somewhat different control test applies
when there are “special policy considerations” at stake. Paisley
v. CIA, 712 F.2d 686, 693 n.30 (D.C. Cir. 1983), vacated in part
on other grounds, 724 F.2d 201 (D.C. Cir. 1984). Such special
considerations are at stake here.
B
In a series of cases stretching from 1978 to 2004, this circuit
has indicated that the standard, four-factor control test does not
apply to documents that an agency has either obtained from, or
prepared in response to a request from, a governmental entity
not covered by FOIA: the United States Congress. See United
We Stand, 359 F.3d at 599. In those cases, we have said,
entities’ intent to relinquish control and FHFA’s ability to use and
dispose of the documents as it saw fit); Consumer Fed’n, 455 F.3d at
290, 293 (concluding that an employee’s personal electronic calendar
was not an agency record, notwithstanding that it was on the agency’s
computer system).
14
See, e.g., Burka, 87 F.3d at 515 (finding that data tapes were
agency records notwithstanding that they were not in the agency’s
files).
22
“special policy considerations . . . counsel in favor of according
due deference to Congress’ affirmatively expressed intent to
control its own documents.” Paisley, 712 F.3d at 693 n.30. In
such cases, whether an agency’s “response is subject to FOIA
turns on whether Congress manifested a clear intent to control
the document.” United We Stand, 359 F.3d at 596. This focus
renders the first two factors of the standard test effectively
dispositive.
The first case in this line was Goland v. CIA, in which a
FOIA requester sought disclosure of the CIA’s copy of a
congressional hearing transcript that a congressional committee
had marked “secret.” 607 F.2d at 343. In concluding that the
transcript was not an agency record, we explained that
“Congress exercises oversight authority over the various federal
agencies, and thus has an undoubted interest in exchanging
documents with those agencies to facilitate their proper
functioning in accordance with Congress’ originating intent.”
Id. at 346. Subjecting the document to FOIA, we said, would
force Congress “either to surrender its constitutional prerogative
of maintaining secrecy, or to suffer an impairment of its
oversight role.” Id. And because “on all of the facts of the case
Congress’ intent to retain control of the document [wa]s clear,”
we ruled that the transcript was a congressional document rather
than an agency record. Id. at 348. In light of “the conditions
attached to its possession,” we concluded that the CIA “is not
free to dispose of the Transcript as it wills, but holds the
document, as it were, as a ‘trustee’ for Congress.” Id. at 347.
In several subsequent cases, we concluded that
congressional documents in the hands of agencies were agency
records. In so doing, however, we reaffirmed the Goland
analysis, finding the documents covered by FOIA only because
Congress had not clearly expressed an intent to retain control
over them. See Paisley, 712 F.2d at 696 (finding that documents
23
created by the CIA in response to congressional requests for
information were agency records because there were insufficient
“indicia of congressional intent” to control the documents); Holy
Spirit Ass’n for the Unification of World Christianity v. CIA, 636
F.2d 838, 840 (D.C. Cir. 1980) (holding that, “even if” requested
CIA documents generated in response to congressional inquires
were “once excluded from the FOIA as congressional records,”
they were “no longer covered by that exemption because
Congress failed to express with sufficient clarity its intent to
retain control over the[m]”); Ryan, 617 F.2d at 786 (holding that
responses to a questionnaire the Attorney General had sent to all
Senators were agency records, because the Senators “gave no
indication that they wished to limit [the Attorney General’s] use
of them,” and because there was “no evidence . . . that the
President in any way diminished the Attorney General’s control
over the[] documents”).
The culmination of this line was our decision in United We
Stand America, Inc. v. IRS. That case concerned documents the
IRS had created in response to a request for information from a
congressional committee. 359 F.3d at 597-98. Direct
application of the Supreme Court’s decision in Tax Analysts was
“not so simple,” we said, because “the connection between
Congress and the requested records implicates considerations
not at issue in Tax Analysts.” Id. at 599.15 Reviewing our
15
Tax Analysts did not present the problem of a non-FOIA entity
exerting control over documents in the hands of a FOIA agency.
Although it did involve records that had been created by another
Branch -- copies of district court tax decisions that were in the
possession of the Justice Department -- the courts did not object to
their release. We made this clear in our own opinion below, noting
that the decisions at issue in the case “remain unencumbered by
judicial limitations on dissemination,” Tax Analysts, 845 F.2d at 1069,
and that decisions upon which courts did place limits “probably would
24
previous cases, we found that “their focus on congressional
control . . . reflects the considerations that underlie the second
factor [in the four-factor test]: the agency’s ability to use or
dispose of the record as it sees fit.” Id. at 600. “Emphasizing
that Congress’s intent to control and the agency’s ability to
control ‘fit together in standing for the general proposition that
the agency to whom the FOIA request is directed must have
exclusive control of the disputed documents,’” we held that, if
“‘Congress has manifested its own intent to retain control, then
the agency -- by definition -- cannot lawfully “control” the
documents.’” Id. (quoting Paisley, 712 F.2d at 693).
Ultimately, we found that there were “sufficient indicia of
congressional intent to control” those portions of the IRS
documents that would reveal Congress’ requests to the agency,
id., and therefore found that those portions were not agency
records.16
The instant case resembles United We Stand in several
important respects. First, this case also involves documents that
an agency created in response to requests from, and information
provided by, a governmental entity not covered by FOIA.
WHACS records are created in response to requests by the
Office of the President17 to grant visitors access to the White
not be considered ‘agency records,’” id. at 1068 n.18.
16
At the same time, we found that Congress had not manifested
an intent to control certain other documents, or parts of other
documents, that would not reveal the requests that Congress had made
to the agency. United We Stand, 359 F.3d at 601. Judicial Watch has
not argued that there are WHACS records, or parts of any such
records, that would not reveal visitor information transmitted by the
White House to the Secret Service.
17
In Part V, we address WHACS records created in response to
requests by White House components that are not part of the Office of
25
House Complex, and they contain visitor information provided
by that Office. See MOU ¶ 11 (“The information contained in
WHACS Records originates with White House pass holders,
visitors, and workers as a result of White House business.”).18
Second, as in United We Stand, the non-covered entity -- here,
the White House -- has “manifested a clear intent to control” the
documents. Id. at 597; see supra Part III.A.1; MOU ¶ 19
(“[A]ny information provided to the Secret Service for the
creation” of such records “is provided under an express
reservation of White House control.”). And that means the
agency is not free to use and dispose of the documents as it sees
fit. See supra Part III.A.2; see, e.g., MOU ¶ 22 (providing that
the Secret Service “will regularly transfer all WHACS Records
in its possession” to the White House and that it “will not retain
its own copies of any WHACS Records”).19 Third, again as in
United We Stand, disclosing the records would reveal the
the President.
18
As noted above, the Secret Service may add information to
some WAVES records that its own personnel learn through
background checks. Supra note 3; see Lyerly Decl. ¶ 8 (Sept. 2006);
White Decl. ¶¶ 7, 8. But the creation of that information is generated
in response to the White House’s request for visitors’ access; its
disclosure would reveal information provided by the White House
(e.g., the identities of visitors); and the White House has asserted
control over all WHACS records. MOU ¶ 18. Those portions of
WAVES records therefore also fall within the compass of United We
Stand. See, e.g., 359 F.3d at 601-02 (permitting the agency to
withhold portions of its response to Congress that would reveal
Congress’ request).
19
Moreover, given the limitations imposed on the Secret Service’s
use of the documents, it is plain that the Service does not have
“‘exclusive control of the disputed documents.’” United We Stand,
359 F.3d at 600 (quoting Paisley, 712 F.2d at 693) (emphasis added).
26
specific requests made by the non-covered entity -- here, the
Office of the President’s requests for visitor clearance.
If anything, the indicia of White House control in this case
are even stronger than the indicia of congressional control in
United We Stand. There, the Joint Committee on Taxation had
demanded only a limited scope of confidentiality and hence
asserted control over only a limited subset of documents. 359
F.3d at 600-01. Here, the White House has manifested its intent
to control the entirety of the WHACS records, all of which it
expects the Secret Service to transfer to it. See MOU ¶ 15. The
expression of that intent is not merely “general,” United We
Stand, 359 F.3d at 602. Rather, it explicitly extends to each of
the “‘particular records’” at issue, id. (quoting Paisley, 712 F.2d
at 695).20
Judicial Watch and its amici argue that the analysis of
United We Stand and its predecessors should be limited to
documents created by or at the instance of Congress, not the
White House.21 Subjecting the latter to FOIA, they say, would
20
Amici for Judicial Watch argue that, because the MOU in this
case was “[e]xecuted after litigation ensued” over the status of White
House visitor logs, it should be given no weight. CREW Br. 16. But
the MOU was executed well before this litigation ensued and well
before the creation and transfer of the documents at issue in this case.
See Holy Spirit, 636 F.2d at 842 (holding that a congressional letter
written “as a result of . . . this litigation long after the actual transfer
to the CIA” was insufficient, but stating that “we do not adopt
appellant’s position that Congress must give contemporaneous
instructions when forwarding congressional records to an agency”
(emphasis added)).
21
Judicial Watch is correct that we have not previously held that
the analysis of Goland and its progeny extends to presidential
communications. But we have certainly suggested that it does. See
27
not analogously force the President “either to surrender [a]
constitutional prerogative of maintaining secrecy, or to . . .
suffer an impairment of [an] oversight role,” United We Stand,
359 F.3d at 599 (quoting Goland, 607 F.2d at 346).
But the Office of the President has comparable
constitutional prerogatives, which we will discuss in more detail
in Part IV. In particular, the Executive has a “constitutional
prerogative” to “maintain[] the autonomy of its office and
safeguard[] the confidentiality of its communications.” Cheney
v. U.S. Dist. Court, 542 U.S. 367, 385 (2004); see id. (noting
that “special considerations control” in such circumstances).
Indeed, Congress crafted FOIA to avoid intruding on the
confidentiality of presidential communications. See Ryan, 617
F.2d at 788 n.19; Soucie v. David, 448 F.2d 1067, 1071-72 (D.C.
Cir. 1971); see also H.R. REP. NO. 93-1380, at 232 (Conf. Rep.).
Bureau of Nat’l Affairs, 742 F.2d at 1491-92 (“[W]here documents
originate within the Congress, the judiciary, and FOIA-exempt
executive agencies, sometimes special policy considerations militate
against a rule compelling disclosure of [such] records . . . merely
because such documents happen to come into the possession of an
agency.” (internal quotation marks omitted)); Ryan, 617 F.2d at 785(stating that the Goland standard also responds to the “severe
problem” that would be created if “materials from the President’s
immediate staff [that] come into the possession of an agency” are
automatically deemed agency records); see also id. at 786 (concluding
that documents were records of the Justice Department because there
was “no evidence . . . that the President in any way diminished [the
agency’s] control over these documents” and “no indication that [the
documents] will ever be transmitted to or seen by the President or his
staff”). Nonetheless, the question has never been squarely presented.
See Paisley, 712 F.2d at 693 n.30 (“We express no view here on
whether a different analysis would be warranted were the creating
body other than Congress.”).
28
It is true, as amici argue, that our prior cases involved inter-
branch communications while the communications at issue here
are intra-branch. CREW Br. 11. But that does not make the
separation-of-powers issues here any less substantial. Indeed,
in one respect they are more substantial: whatever
encroachment upon congressional authority we might engender
by applying FOIA to congressional communications, it was
Congress that passed the Act and Congress that can amend it.
No such solution is available to the President if Congress, in
enacting FOIA, authorized an intrusion into the confidentiality
of his communications.
Subjecting WHACS records to FOIA would thus confront
the President with a dilemma similar to the one that concerned
us in Goland and United We Stand -- forcing him either to
“surrender [his] constitutional prerogative of maintaining
secrecy” regarding his choice of visitors (and therefore of
outside advisors), or to decline to cooperate with the executive
branch agency entrusted with (and necessary for) his personal
protection, United We Stand, 359 F.3d at 599 (quoting Goland,
607 F.2d at 346). Given 18 U.S.C. § 3056(a) -- which bars the
President from declining Secret Service protection -- it is not
even clear he would have the latter choice.
These considerations persuade us that the United We Stand
test is appropriate in this case. And, as discussed above, we find
sufficient indicia of presidential control over WHACS records
of visits to the Office of the President to satisfy that test. An
additional but related consideration, discussed in the following
Part, confirms the wisdom of construing the term “agency
records” to exclude those records from the scope of FOIA.
29
IV
In this Part, we discuss separation-of-powers concerns that
provide an additional -- and more fundamental -- reason to find
that the logs of visits to the Office of the President are not
“agency records” within the meaning of FOIA.
A
As a result of amendments enacted in 1974, FOIA defines
an “agency” as any “establishment in the executive branch of the
Government (including the Executive Office of the President).”
5 U.S.C. § 552(f)(1). In Kissinger, the Supreme Court held that
“the legislative history is unambiguous . . . in explaining that the
‘Executive Office’ does not include the Office of the President.”
445 U.S. at 156. “The Conference Report for the 1974 FOIA
Amendments,” the Court said, “indicates that ‘the President’s
immediate personal staff or units in the Executive Office whose
sole function is to advise and assist the President’ are not
included within the term ‘agency’ under the FOIA.” Id.
(quoting H.R. REP. NO. 93-1380, at 232 (Conf. Rep.)). In light
of this clear expression of congressional intent, the Court held
that documents generated by such staff or units are “not ‘agency
records’ when they [are] made.” Id.; accord Tax Analysts, 492
U.S. at 143.
In the years since the Kissinger case, this circuit has applied
Kissinger’s understanding of the scope of the term “agency” to
find that individuals employed in the “Office of the President,”
Armstrong v. Exec. Office of the President, 1 F.3d at 1295; the
“White House Office,” Meyer v. Bush, 981 F.2d 1288, 1293 n.3
(D.C. Cir. 1993); the National Security Council, Armstrong v.
Exec. Office of the President, 90 F.3d 553, 556 (D.C. Cir. 1996);
and the “Office of the Vice President,” Wilson v. Libby, 535
F.3d 697, 708 (D.C. Cir. 2008), are among those whose
30
documents are excluded from FOIA. It is therefore undisputed
that Judicial Watch may not obtain the appointment calendars
(or visitor logs) of those individuals -- or of the President or
Vice President himself -- by sending a FOIA request to the
White House Complex, where employees of those units work.
See Oral Arg. Recording at 23:45. Their calendars are simply
not “agency records” as FOIA defines the term.
As we have explained, however, the President and his staff
cannot retain effective physical control over their calendars.
Congress requires the President to accept the protection of the
Secret Service. See 18 U.S.C. § 3056(a). And in order to
protect the President, the Secret Service must monitor and
control access to the building in which the President lives and
works. See id. § 3056A; White Decl. ¶¶ 2, 5. To accomplish
this, the Service requires presidential staff to request access for
visitors, and thereafter requires logging of those visitors’
entrances to and exits from the White House Complex. Those
procedures result in WHACS records that replicate in key
particulars the content of the President’s appointment calendars
and those of his staff, including the name, time, and appointment
of the visitors who enter the White House Complex to see them.
See supra Part I; MOU ¶ 11. The President thus has little choice
but to permit the Secret Service to reconstruct his appointment
calendars. Hence, if the Secret Service must disclose WHACS
records, a FOIA requester will effectively receive copies of
those calendars.
There is good reason to doubt that Congress intended to
require the effective disclosure of the President’s calendars in
this roundabout way. As Kissinger noted, Congress’ exclusion
of the papers of the President (and his advisors) from the
coverage of FOIA was quite intentional. And where Congress
has intentionally excluded a governmental entity from the Act,
we have been unwilling to conclude that documents or
31
information of that entity can be obtained indirectly, by filing a
FOIA request with an entity that is covered under that statute.22
As noted in Section III.B, the cases in which we have barred
such end runs have involved “special considerations” attendant
to requiring the disclosure of documents or information
generated by Congress itself -- namely, separation-of-powers
concerns that would arise were we to construe FOIA to cover
such documents or information. But the Supreme Court has
made clear that separation-of-powers concerns can also arise in
the context of communications by the President and his close
advisors. As the Court said in Cheney, “special considerations
control when the Executive Branch’s interests in maintaining the
autonomy of its office and safeguarding the confidentiality of its
communications are implicated.” 542 U.S. at 385 (emphasis
added); see id. at 382 (declaring that “the public interest requires
that a coequal branch of Government ‘afford Presidential
confidentiality the greatest protection consistent with the fair
administration of justice,’” and identifying that interest as a
“separation-of-powers consideration[]” (quoting United States
v. Nixon, 418 U.S. 683, 715 (1974))).
Those concerns are implicated here. Construing the term
“agency records” to extend to White House visitor logs --
regardless of whether they are in the possession of the White
House or the Secret Service -- could substantially affect the
22
See United We Stand, 359 F.3d at 603 (“Congressional
documents . . . are not subject to FOIA at all and, for the same reason,
neither are the portions of the [agency’s] response that would reveal
the Joint Committee request.”); Goland, 607 F.2d at 346 (“It may be
assumed that plaintiffs could not easily win release of the Hearing
Transcript from the House of Representatives; we will not permit them
to do indirectly what they cannot do directly because of the fortuity of
the Transcript’s location.”).
32
President’s ability to meet confidentially with foreign leaders,
agency officials, or members of the public. And that could
render FOIA a potentially serious congressional intrusion into
the conduct of the President’s daily operations. See Nixon, 418
U.S. at 705-06 (1974) (“[T]he protection of the confidentiality
of Presidential communications has . . . constitutional
underpinnings.”); Ryan, 617 F.2d at 788 n.19 (stating that a
“[f]ailure to exempt presidential staff from the FOIA would
raise a constitutional issue of separation of powers”).
The Supreme Court has emphasized the importance of
“interpreting statutes to avoid deciding difficult constitutional
questions where the text fairly admits of a less problematic
construction.” Public Citizen v. U.S. Dep’t of Justice, 491 U.S.
440, 455 (1989); see id. at 465-67. In Public Citizen, it
employed that canon in a closely related case involving the
Federal Advisory Committee Act (FACA). That Act requires
(inter alia) that records of “advisory committees” be made
available to the public unless they fall within a FOIA exemption,
and it defines an advisory committee as any committee
“utilized” by the President or an agency in the interest of
obtaining advice or recommendations. 491 U.S. at 451-52(quoting 5 U.S.C. App. 2 § 3(2)). Although the Court had “no
doubt” that the Executive “utilized” -- “in one common sense of
the term” -- the American Bar Association’s Standing
Committee on the Federal Judiciary to obtain advice regarding
judicial nominations, the avoidance canon “tip[ped] the balance
decisively against FACA’s application.” Id. at 452, 465. In the
Court’s view, there was “no gainsaying the seriousness of [the]
constitutional challenges” that applying FACA to the Standing
Committee would engender. Id. at 467. Those included the
concern that extending FACA to the President’s consultations
with the Committee “would potentially inhibit the President’s
freedom to investigate, to be informed, to evaluate, and to
consult during the nomination process.” Id. at 488 (internal
33
quotation marks omitted). The Court was “loath,” it said, “to
conclude that Congress intended to press ahead into dangerous
constitutional thickets in the absence of firm evidence that it
courted those perils.” Id. at 466.
This court, sitting en banc, has likewise employed the
constitutional avoidance canon to resolve a FACA case. On
remand from the Supreme Court’s decision in Cheney, we
construed FACA narrowly so as not to cover an energy policy
group composed of the Vice President and other senior
government officials, even if private parties were also involved
or influential, as long as the private parties lacked a vote or a
veto. In re Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005) (en
banc). Without deciding whether application of FACA to such
a committee would be constitutional, we concluded that
“separation-of-powers considerations,” including “‘the
Executive Branch’s interest in maintaining the autonomy of its
office and safeguarding the confidentiality of its
communications,’” dictated the narrow construction. Id. at 727-
28 (quoting Cheney, 542 U.S. at 385). See also Ass’n of Am.
Physicians & Surgeons v. Clinton, 997 F.2d 898, 909, 910 (D.C.
Cir. 1993) (declining to apply FACA to a presidential health
care task force in order “to avoid the difficult constitutional
issue” that would follow from “restrict[ing] the President’s
ability to seek advice from whom and in the fashion he
chooses”).
We have also employed the canon directly in the FOIA
context. In Judicial Watch v. Dep’t of Energy, we addressed the
question of whether certain documents of the same energy
policy group at issue in Cheney were “agency records” for
purposes of FOIA. 412 F.3d 125 (D.C. Cir. 2005). Once again
citing Cheney’s admonition that “‘special considerations control
when the Executive Branch’s interest in maintaining the
autonomy of its office and safeguarding the confidentiality of its
34
communications are implicated,’” we concluded that the
documents were not “agency records.” Id. at 132 (quoting
Cheney, 542 U.S. at 385).
Indeed, this court utilized the avoidance canon in the case
that was relied on both by Congress in drafting the 1974 FOIA
Amendments, and by the Kissinger Court in adopting the “sole
function” test that was cited in the legislative history of those
amendments. Prior to the amendments, FOIA contained nothing
to indicate whether it applied to the President or his advisors. In
Soucie v. David, we interpreted the Act as excluding “the
President’s staff” and those units whose “sole function [is] to
advise and assist the President.” 448 F.2d at 1075. We did so
in order to “avoid” the “[s]erious constitutional questions [that]
would be presented” if it were “necessary for the court to
consider whether the disclosure provisions of the Act exceed the
constitutional power of Congress to control the actions of the
executive branch.” Id. at 1071-72; see McGehee, 697 F.2d at
1108; Ryan, 617 F.2d at 788 n.19.
In subsequently adding the term “Executive Office of the
President” to the Act, the Conference Report for the 1974
Amendments (cited in Kissinger) explained that “the conferees
intend the result reached in Soucie v. David,” specifically stating
that “[t]he term is not to be interpreted as including” the staff
and units that Soucie had excluded. H.R. REP. NO. 93-1380, at
232 (Conf. Rep.); see Kissinger, 445 U.S. at 156; Meyer, 981
F.2d at 1291-92. Thus, it appears that not only this court, but
Congress as well, wished to avoid the serious separation-of-
powers questions that too expansive a reading of FOIA would
engender. When that is the case, it is doubly our obligation to
seek a construction that avoids constitutional conflict. See
Hamdan v. United States, 696 F.3d 1238, 1247-48 (D.C. Cir.
2012).
35
Finally, although the preceding considerations suggest that
WHACS records may be a poor fit for FOIA, the same
considerations make them a better fit for the Presidential
Records Act (PRA), which Congress enacted in 1978 to avoid
the very “separation of powers concerns” and “outside
interference with the day-to-day operations of the President and
his closest advisors” that we have just described, Armstrong v.
Bush, 924 F.2d at 290; H.R. REP. NO. 95-1487, at 6 (1978).
Unlike FOIA’s treatment of “agency records,” the PRA gives
the President “virtually complete control” over “Presidential
records” during his term of office. Armstrong v. Bush, 924 F.2d
at 290; see also 44 U.S.C. § 2204(b).23 And it defines
“Presidential records” to include
documentary materials, or any reasonably segregable
portion thereof, created or received by the President,
his immediate staff, or a unit or individual of the
Executive Office of the President whose function is to
advise and assist the President, in the course of
conducting activities which relate to or have an effect
upon the carrying out of the constitutional, statutory, or
other official or ceremonial duties of the President.
44 U.S.C. § 2201(2).
There are good reasons to think that WHACS records fall
within this definition of “Presidential records.” First, those
records are “created or received” by the President and his staff,
44 U.S.C. § 2201(2). As we have noted, see supra Part III,
23
Cf. 44 U.S.C. § 2203(f)(1) (“Upon the conclusion of a
President’s term of office, . . . the Archivist of the United States shall
. . . make [Presidential] records available to the public as rapidly and
completely as possible consistent with the provisions of this Act.”).
36
many WAVES and ACR records are arguably “created” by
White House staff and White House pass readers on servers
physically located in the White House Complex. See MOU
¶¶ 4-5; White Decl. ¶¶ 8-10; Nelson Decl. ¶ 3. And the White
House “receives” those records from the Secret Service within
30 to 60 days of the visits with which they are associated. See
MOU ¶ 14. Second, WHACS records are created “in the course
of” “the carrying out of the constitutional, statutory, official,
[and] ceremonial duties of the President,” 44 U.S.C. § 2201(2).
They are generated whenever the President consults agency
officials, negotiates with foreign heads of state, or speaks with
private organizations or individuals at the White House. And
they are essential to ensuring that the President can go about
these core activities without risking his security or that of his
family and staff. WHACS records thus track quite nicely the
definition of “Presidential records” found in the PRA.
We are mindful of the fact that Congress did not intend the
PRA to diminish the scope of FOIA. See 44 U.S.C.
§ 2201(2)(B) (providing that the “term ‘Presidential records’
. . . does not include any documentary materials that are
. . . official records of an agency (as defined in [5 U.S.C.
§ 552(e)])”); see Armstrong v. Exec. Office of the President, 1
F.3d at 1290, 1292; Bloomberg Br. 7. But that does not make it
irrelevant to our analysis. When Congress enacted the PRA in
1978, no case had considered whether materials anything like
WHACS records were subject to FOIA. Accordingly, the
PRA’s definition of “Presidential records” bears on Congress’
understanding of the scope of FOIA at the time of the PRA’s
passage, and hence on the scope of the records it intended to
subject to the quite different disclosure regime of the PRA. Cf.
FBI v. Abramson, 456 U.S. 615, 626 n.8 (1982) (noting that
“Congress’ definition of ‘records’” in the PRA “was helpful to
us in determining that an agency must create or obtain a record”
before it can be held subject to FOIA).
37
In sum, the avoidance canon confirms our conclusion that
WHACS records do not fall within the scope of FOIA, but are
instead subject to the regime established by the PRA.
B
The district court concluded that “the Constitutional
avoidance doctrine is not applicable here because the Court is
not faced with the interpretation of an ambiguous statute.”
Judicial Watch, 803 F. Supp. 2d at 60. “[E]ven if defendant’s
concerns about the intrusion on the confidentiality necessary for
the President and Vice President to discharge their constitutional
duties are valid ones,” the court said, “they do not serve as a
license for the court to transmute the meaning of an
unambiguous statute.” Id. at 61 (internal quotation marks
omitted). But as we noted in Part II.B, the statute is not only
ambiguous, it is opaque: Other than excluding records of the
Office of the President, the term “agency records” is “defined
neither in the Act nor its legislative history.” Tax Analysts, 492
U.S. at 142. And “[n]either the language of the statute nor the
legislative history provides much guidance in fleshing out the
meaning of the term.” Bureau of Nat’l Affairs, 742 F.2d at
1488. Indeed, as we said in Ryan v. Department of Justice,
“when the requested documents are in the possession of an
agency but were created by an entity not defined as an ‘agency’
under the FOIA[, including] . . . the President’s immediate
personal staff and units in the Executive Office whose sole
function is to advise and assist the President[,] . . . FOIA does
not specify a test for determining what is an agency record.”
617 F.2d at 784-85.24
24
See also McGehee, 697 F.2d at 1108 (“[T]he question whether
a document in the possession of one agency that originated in another
constitutes an ‘agency record’ for the purposes of the FOIA is not
governed by either the terms of the statute, the legislative history or
38
The district court also thought, and Judicial Watch and its
amici argue here, that any separation-of-powers concerns arising
from extending FOIA to WHACS records could be mitigated by
the Executive’s “ready recourse” to FOIA Exemption 5.
Judicial Watch, 803 F. Supp. 2d at 61; CREW Br. 20; Oral Arg.
Recording at 28:00 - 28:40.25 If such an argument applies in this
case, however, it would also have applied in the cases that
narrowly construed the coverage of FACA, since FACA
likewise authorizes the withholding of records under the FOIA
exemptions. See Public Citizen, 491 U.S. at 446-47 (citing 5
U.S.C. App. 2 § 10(b)); In re Cheney, 406 F.3d at 726. Indeed,
this argument would also have applied in Soucie and the other
cases in which we employed the avoidance canon to hold that
FOIA does not cover the records of presidential advisors
because to do otherwise would present “serious constitutional
questions.” Soucie, 448 F.2d at 1071-72; see Judicial Watch v.
Dep’t of Energy, 412 F.3d at 132; Ryan, 617 F.2d at 788 n.19.
But it was not applied in any of those cases.
Of course, there might be little consequence to resolving
constitutional concerns by relying on the Executive’s assertion
of Exemption 5, rather than on the meaning of “agency records,”
if WHACS records were generally exempt from withholding
under that exemption. But Judicial Watch and its amici
certainly do not think that is so. In another district court case
precedent.”).
25
Exemption 5 protects from disclosure “inter-agency or intra-
agency memorandums or letters which would not be available by law
to a party . . . in litigation with the agency.” 5 U.S.C. § 552(b)(5). It
incorporates, inter alia, “the presidential communications privilege,
the state secrets privilege, and the deliberative process privilege,”
Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 321
(D.C. Cir. 2006).
39
presenting almost the identical question, they argued -- and the
court agreed -- that WHACS visitor records do not fall within
Exemption 5 because they consist only of the names of the
visitor, visitee, and date and time of the visit. CREW, 592 F.
Supp. 2d at 118-19. Although that court said “there may exist
some hypothetical situation” in which the exemption would
apply, id. at 119, Judicial Watch has been hard put to suggest
one. At oral argument, for example, it was unwilling to say the
exemption would extend to WHACS records revealing visits
between Israeli officials and National Security Council
personnel who work on issues relating to Iran’s nuclear program
-- meetings that could be taken to signal discussions about
possible military action. See Oral Arg. Recording at 36:30 -
44:08.26
In any event, there are no decisions of this court that
address whether the presidential communications privilege
contained in Exemption 5 extends to the names of visitors to the
President and his staff. And it seems to us that deciding that
question would be at least as difficult -- and present separation-
of-powers questions at least as serious -- as deciding the
question now before us. We see nothing to be gained by trading
one difficult question for another. Cf. Cheney, 542 U.S. at 389-
90 (“Once executive privilege is asserted, . . . [the] inquiry
places courts in the awkward position of evaluating the
Executive’s claims of confidentiality and autonomy, and pushes
to the fore difficult questions of separation of powers and checks
and balances. These occasion[s] for constitutional confrontation
between the two branches should be avoided whenever
possible.” (internal quotation marks omitted)).
26
Judicial Watch did suggest that records revealing a visit to the
President by (and the identities of) the Navy SEALs who killed Osama
bin Laden would be exempt. Oral Arg. Recording at 44:08 - 44:41.
40
Moreover, even if a significant subset of WHACS records
would be protected by Exemption 5, the burden of identifying
those records on a document-by-document basis is substantial
enough to make that an ineffective way of mitigating the kind of
separation-of-powers concerns at issue here. In this case,
Judicial Watch’s FOIA request covers every visitor record from
January through August 2009 -- a total of almost 500,000
records. Droege Decl. ¶ 16. And we cannot be blind to the
precedent we would set by holding that those records are
covered by FOIA: such a holding would in all likelihood be
followed by subsequent requests covering the next four years,
and then each month thereafter.27
In Cheney, the Supreme Court reviewed a discovery order,
issued by a district court in a case in which the plaintiffs alleged
a violation of FACA, directing the Vice President and other
senior officials to produce information about a task force
established to give advice to the President. 542 U.S. at 372.
Notwithstanding that the district court’s order permitted the
government to assert privileges to protect individual sensitive
documents from disclosure, the Court held that mandamus could
be available to block such discovery. The ability of the
27
The burden is particularly great with respect to the records at
issue here because many if not most of the personnel with knowledge
of the purpose of the January through August 2009 visits no longer
work at the White House. See Tibbits Decl. ¶¶ 27, 33 (regarding
national security staff). The burden going forward is reduced because,
under the voluntary disclosure policy adopted by the White House in
September 2009, employees who thereafter submit visitor requests
must designate visits that are sensitive. See supra note 6; Tibbits
Decl. ¶¶ 15-16. But flagging a visit as “sensitive” is not the same as
deciding whether it is covered by a FOIA exemption, a decision that
still imposes a considerable burden on the senior staff of the President
and Vice President, who may be the only ones who can make such
judgments. See Tibbits Decl. ¶¶ 35, 37.
41
recipients to assert privileges, the Court said, was insufficient to
“dismiss[] the[] separation-of-powers concerns” raised by the
potential intrusion into “Presidential confidentiality.” Id. at 382-
83. “Given the breadth of the discovery requests,” the Court
declined to require the government to “bear the burden of
invoking executive privilege with sufficient specificity and of
making particularized objections.” Id. at 388 (internal quotation
marks omitted). Because the burden at issue here is comparable,
a similar determination is warranted.
We therefore find no reason not to, and every reason to,
apply the canon of avoiding serious constitutional questions in
construing the meaning of “agency records” under FOIA.
C
In sum, two sets of considerations lead us to conclude that
WHACS records disclosing visitors to the Office of the
President are not “agency records.” First, although application
of our usual, four-part control test for classifying documents as
“agency records” leads to indeterminate results in this case, the
modified control test set forth in United We Stand is applicable
and indicates that WHACS records are not agency records.
Second, that judgment is confirmed by application of the canon
of constitutional avoidance. In order to avoid substantial
separation-of-powers questions, we conclude that Congress did
not intend to authorize FOIA requesters to obtain indirectly from
the Secret Service information that it had expressly barred
requesters from obtaining directly from the President.
Judicial Watch and its amici fear that this case will open the
floodgates to White House efforts to circumvent FOIA. See
Judicial Watch Br. 11; CREW Br. 25. Judicial Watch worries
that, “[i]f an MOU is all that was necessary to remove records
from the ambit of FOIA, by assigning ‘legal custody’ away from
42
the agency, then wide swaths of agency records are subject to
removal from agency access.” Judicial Watch Br. 11. This is a
serious argument, and if such an MOU were all that were
necessary -- or if any record touching on White House
communications were necessarily exempt from FOIA -- there
would indeed be cause for serious concern. But that is not our
holding.
First, we grant no deference to the MOU’s assertion that
WHACS records are “at all times Presidential records . . . under
the exclusive legal custody and control of the White House.”
MOU ¶ 17-18 (emphasis added). As we have explained, that is
an issue we decide de novo. See supra Part II.A. Because this
case was decided on summary judgment, however, we do accept
the MOU’s representations as to the way in which both parties
have historically regarded and treated the documents. See id.
Second, the circumstances that lead us to give effect to the
MOU in this case are rare. There are very few instances in
which a construction of FOIA would put the President on the
horns of a dilemma between surrendering his confidentiality and
jeopardizing his safety. It is the presence of this unacceptable
choice, comparable to the choice Congress faced in United We
Stand and Goland, that is central to our understanding that the
President exercises control over these visitor logs.
Third, and most important, the kind of information at issue
here is in many ways sui generis. This case involves a category
of documents that effectively reproduces a set of records that
Congress expressly excluded from FOIA’s coverage. We are
not confronted with an attempt to protect information that would
otherwise be subject to FOIA. Rather, the White House seeks
to protect information that would not even arguably be subject
to the Act, but for the President’s need for Secret Service
protection. Again, we regard these circumstances as unique.
43
V
Finally, we note that there is a subcategory of WHACS
records as to which our holding does not apply. There are
several offices located on the grounds of the White House
Complex, including the Office of Management and Budget
(OMB) and the Council on Environmental Quality (CEQ), that
this court has held are not part of the President’s immediate staff
and whose “sole function” is not to “advise and assist the
President.” Those offices are “agencies” under FOIA, and their
records are “agency records” subject to disclosure. See, e.g.,
Armstrong v. Exec. Office of the President, 90 F.3d at 559; Pac.
Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259, 1263
(D.C. Cir. 1980).28
For the reasons discussed in Part III.A, application of the
four-part control test to WHACS records that reveal visits to
those offices is indeterminate. And because the “burden is on
the agency to demonstrate, not the requester to disprove, that the
materials sought are not ‘agency records,’” Tax Analysts, 492
U.S. at 142 n.3, that indeterminacy resolves the matter in
28
The White House website includes a list of units covered by
FOIA. In addition to OMB and the CEQ, the website lists the Office
of National Drug Control Policy (ONDCP), the Office of the U.S.
Trade Representative (USTR), and the Office of Science Technology
Policy (OSTP). OSTP, FOIA Reading Room,
http://www.whitehouse.gov/administration/eop/ostp/library/
compliance/foia; see Center for Int’l Envtl. Law v. Office of U.S.
Trade Representative, 718 F.3d 899, 904 (D.C. Cir. 2013)
(adjudicating a FOIA claim regarding the USTR); Soucie, 448 F.2d at
1075 (holding that the Office of Science and Technology, predecessor
of OSTP, was covered by FOIA); see also 5 U.S.C. § 552(f)(1)
(defining “agency” to include “the Executive Office of the President”);
H.R. REP. NO. 93-1380, at 232 (Conf. Rep.). See generally Meyer,
981 F.2d at 1291-94.
44
Judicial Watch’s favor -- unless special considerations of the
kind discussed in Parts III.B and IV counsel otherwise.
For the White House offices that are themselves covered by
FOIA, there are no such special considerations. First, although
the White House (through the MOU) has asserted control over
all WHACS records, including records relating to those offices,
it has not asserted control over the information they reveal. To
the contrary, the government acknowledges that the records of
those offices -- including the calendars of their personnel -- may
be obtained by FOIA requests made directly to them. See Oral
Arg. Recording at 50:50 - 51:17; Gov’t Reply Br. at 15-16.
Thus, subjecting the WHACS records of those offices to FOIA
would not permit a requester to obtain anything it could not
obtain directly from the office itself. Second, at oral argument
the Secret Service acknowledged that revealing the contents of
those calendars would not pose separation-of-powers concerns.
See Oral Arg. Recording at 53:15 - 53:40. Accordingly, neither
of the special considerations that drive our decision to limit the
reach of the term “agency records” applies to WHACS records
that reveal visitors to offices that are subject to FOIA but happen
to be located in the White House Complex.
Nor can we discern any other reason for construing “agency
records” not to apply to such records. They plainly do not fall
within the coverage of the Presidential Records Act. See 44
U.S.C. §§ 2201(2), (2)(B). The Secret Service has not suggested
that disclosing WHACS records relating to those offices would
undermine its ability to protect the President. See Oral Arg.
Recording at 54:33 - 54:40. And if disclosing particular records
did threaten the President’s security, we are confident they
would be shielded from disclosure by one or another FOIA
exemption. See, e.g., 5 U.S.C. § 552(b)(7)(F) (exempting
records compiled for law enforcement purposes whose
production “could reasonably be expected to endanger the life
45
or physical safety of any individual”). Such claims can, if
necessary, be raised on remand. The government does maintain
that it would be less burdensome for the requesters to get the
information directly from the offices themselves, but that too is
a contention that can be made to the district court.
At oral argument, the Secret Service raised the possibility
that there may be some visitors whose appointments are with
FOIA-subject agencies, but who later walk over to the White
House Office and meet with the President or his staff. See Oral
Arg. Recording at 57:21 - 57:38. Perhaps so. But we have
received no indication that WHACS records for such visitors
would reveal that they had meetings anywhere other than at the
locations of their scheduled visits. See MOU ¶ 4 (stating that
the records disclose “the time and location of the planned visit”
and “the actual time and place of the visitor’s entry into and exit
from the White House Complex”). To the extent the records
would reveal such exempt information, we agree that they are
not agency records. Cf. United We Stand, 359 F.3d at 603-04(holding that portions of agency records may be redacted as non-
agency records). But it is impossible at this point to determine
whether any records might be subject to withholding on this
basis. We leave it to the district court to make that
determination in the first instance, aided as necessary by
affidavits and further factual development.
VI
Because FOIA contains no definition of “agency records,”
and because application of our standard four-part test is
indeterminate, this is a difficult case. The opinion of the district
court, and the briefs of Judicial Watch and its amici, contain
serious and substantial arguments in support of that court’s
holding. But Congress did make clear that it intended to place
documents like the President’s appointment calendar beyond the
46
reach of FOIA. Construing the statutory text in light of both that
intent and the canon of avoiding constitutional separation-of-
powers concerns, we hold that WHACS records that disclose the
kind of information contained in such documents are not agency
records within the meaning of FOIA. At bottom, we do not
believe Congress intended that FOIA requesters be able to
obtain from the gatekeepers of the White House what they are
unable to obtain from its occupants.
We reiterate that our disposition is narrower than that
sought by the Secret Service in two important respects. We do
not attach any legal significance, beyond its factual descriptions,
to the 2006 MOU between the Secret Service and the White
House. Further, we hold that, subject to any applicable
exemptions, the Secret Service may not withhold WHACS
records that reveal visitors to those offices within the White
House Complex that are themselves subject to FOIA. Those
documents are “agency records.”
The judgment of the district court is reversed as to those
WHACS records that would disclose visitors to the Office of the
President. It is affirmed as to those that would disclose visitors
to offices in the White House Complex that are covered by
FOIA. The case is remanded for further proceedings consistent
with this opinion.
So ordered.