Federal judges weigh public access to visitor logs, protection of sensitive presidential information

Federal appellate court judges Tuesday voiced their concerns that releasing White House visitor logs to an advocacy group could release sensitive information held by the president.

“What if the president met with possible appointees to a position?” Circuit Judge Merrick Garland asked. “They would be revealed. Or what about a unique visitor that would be so sensitive that their name alone would reveal why they were there?”

In oral arguments in the case of Judicial Watch v. Secret Service, held before a three-judge panel of the U.S. Court of Appeals in Washington (D.C. Cir.), the advocacy group Judicial Watch seeks the release of logs and records of visitors to the White House under the federal Freedom of Information Act (FOIA). The Secret Service has withheld the records, claiming they are not the agency's to release.

U.S. Department of Justice attorney Mark Stern argued that the sole function of the Secret Service in this capacity is to allow people to visit the White House. The Secret Service does not create the records — other agencies merely submit the visitors’ information to the agency. Therefore, he said, the visitor logs are not “agency records” but instead belong to the office of the president, where FOIA does not apply.

“The Secret Service is a gatekeeper for the President,” Stern said. “These are not our agency’s records.”

Stern said that Congress requires that the president is protected by the Secret Service and it would be unfair that his records would be subject to FOIA by association.

Judicial Watch attorney James Peterson pointed out that the advocacy group requested the information of visitors to all agencies within the walls of the White House, not just the president’s visitors. Several of the agencies that submit visitor information, such as the Council of Economic Advisers, are subject to FOIA.

Chief Judge David Sentelle suggested that Judicial Watch could obtain under the FOIA the logs of those agencies subject to the law.

Peterson said the group’s FOIA request passed the court’s test for which records can be obtained through FOIA, so the court should affirm the lower court’s decision. In response to the judges’ concerns about revealing sensitive data, Peterson said it would be the government’s burden to show that names should be exempted in such situations.

“FOIA was made with exemptions for situations like this,” Peterson said. “The exemptions are there to protect the sensitive content of FOIA records.”

The Reporters Committee for Freedom of the Press joined a friend-of-the-court brief that urged the appellate court to affirm the lower court's ruling that the records Judicial Watch requested are subject to FOIA. Advocacy groups are concerned that if the appellate court rules in favor of the Secret Service, other agencies can follow suit and claim their records belong to the office of the president, allowing them to avoid FOIA.

The case arose from Judicial Watch's 2009 request for all records containing information about visitors to the White House. The organization administratively appealed the Secret Service's denial, and the agency upheld its original ruling. Judicial Watch then brought suit to challenge the denial in D.C.'s federal trial court. In 2010, that court ruled that the visitor logs are subject to FOIA, a decision the Secret Service appealed.

The requested documents contain personal information about potential visitors to the White House, including their names, Social Security numbers and birth dates. The Secret Service collects this information and uses it to perform background checks on the visitors before they come to the White House.

Related Reporters Committee resources:

· Federal FOIA Appeals Guide: The Administrative Appeals Process