Court rules White House visitor logs subject to FOIA

A federal district court in Washington, D.C. held on Wednesday that White House visitor logs are agency records and therefore subject to possible disclosure under the federal Freedom of Information Act in Judicial Watch, Inc. v. United States Secret Service.

Judicial Watch requested the visitor logs in August 2009, requesting all logs dating from President Obama's inauguration in January 2009 to "the present." The U.S. Secret Sevice argued that the records were not "agency records" as defined by FOIA, but records of the White House, subject to the Presidential Records Act. In addition, the Secret Service claimed that it would be "virtually impossible" for the agency to review all the records requested "without potentially compromising national security interests."

At issue before the court were nine months of records, as the White House has proactively disclosed the visitor logs since September 15, 2009.

Relying on U.S. Supreme Court precedent, the court used a two part test to determine whether the records were agency records under the statute. To be an agency record, the agency must create or obtain the documents and the agency must be in control of the materials at the time of the FOIA request.

The court held that the first prong of the test, whether the agency creates or obtains the records, is easily decided. "At a minimum, the Secret Service obviously obtains the records," the court held, because despite attempts to emphasize the White House's role in creating the records, the Secret Service's own description of the records describes how the agency obtains and uses the records.

"Regardless of what information may be supplied by outside actors, the [visitor logs] are largely generated by the Secret Service, and are undisputedly obtained by the Secret Service," the court held.

The question of whether the Secret Service has control over the records involves a four-part test established by the U.S. Court of Appeals in Washington, D.C. The determination is based on the intent to retain or relinquish control of the records, the ability of the agency to use and dispose of the records, the extent to which agency employees have relied upon the records and the degree to which the records are integrated into the agency's system or files.

The Secret Service argued that it did not have control over the records because, generally, it transfers the records to the White House after 30 to 60 days. The only reason, it said, it still had the records at issue in its possession is because of the ongoing litigation.

The court, however, held that while the Secret Service certainly had the intent to relinquish control of the records, "the other three factors all cut in the opposite direction."

The court held that the agency had the ability to dispose of the records and provided little evidence to the contrary, despite its stated intent to transfer the records elsewhere. In addition, despite agency arguments that reliance on the records was "limited," the court held that such limited reliance is in accordance with the exact purpose of the records.

"This 'limited' reliance is directly tied to the purpose of the records in the first place. The [visitor logs] are created – above all else – to facilitate the precise uses for which the Secret Service relies upon them."

Lastly, the court held that the records, while in the Secret Service's custody, are fully integrated into its system. It does not matter that the records are later transfered and disposed of, the court held, because while in the possession of the Secret Service, the records are fully integrated into its system. When balancing the four factors, the court held that the facts clearly weigh against the Secret Service's contention that the records are not agency records.

The Secret Service also argued that to apply FOIA to the visitor logs would raise a separation of powers issue because it would be "a substantial intrusion on the confidentiality necessary for the President and Vice President to discharge their constitutional duties."

The court dismissed this argument, holding that the issue raised by the Secret Service only applies to potentially ambiguous statutes, of which FOIA is not one. The court also held that regardless of whether or not there is ambiguity in FOIA, the Secret Service's argument fails because there are exemptions to FOIA which cover the types of records the agency claims raise the constitutional issue.

The court also dismissed the Secret Service claim that it would be impossible to review the records requested without putting undue risk on national security. The court held that the Secret Service did not put forth an argument showing it would be overly burdensome to process the records.

It is possible, the court held, that none of the records requested will be disclosed because of the possible applicability of FOIA exemptions. However, the court held that the Secret Service must process the request and examine all records. The Secret Service, the court held, "has not met its burden to establish that the search requested by [Judicial Watch] is so unreasonable as to require a blanket rejection."

As such, the court ordered the Secret Service to "process [Judicial Watch's] FOIA request, disclose all segregable, nonexempt records, and then assert specific FOIA exemptions for all records it seeks to withhold."

Wednesday's decision is in line with two previous decisions by the district court that held that the White House visitor logs were agency records. Previously, the court held the same in the 2006 case Wash. Post v. U.S. Dep't of Homeland Security, which was later vacated on other grounds, and the 2007 case Citizens for Responsibility and Ethics in Wash. v. U.S. Dep't of Homeland Security.