The opinion of the court was delivered by: Royce C. Lamberth United States District Judge
Plaintiff Citizens for Responsibility and Ethics in Washington (CREW), a non-profit organization and self-described government watchdog, filed a Freedom of Information Act request with the United States Secret Service, a component of the United States Department of Homeland Security, for documents relating to nine individuals. CREW sought all records in the Secret Service's possession showing that any of these nine individuals, described as prominent "conservative Christian leaders," had recently visited the White House or the Vice President's Residence. When the Secret Service failed to respond to this request in a timely fashion, CREW filed the present action under the Freedom of Information Act, the Federal Records Act, and the Administrative Procedure Act, challenging not only the Secret Service's failure to respond to its request, but the Secret Service's policy of deleting certain White House visitor logs.
Charged by federal statute with protecting the President and Vice-President of the United States and their immediate families, see 18 U.S.C. §§ 3056, 3056A (2007 Suppl.), the Secret Service monitors visitors to the White House Complex*fn1 and the Vice-President's Residence.*fn2 Neither the President nor the Vice-President may refuse this protection. As part of this mandatory duty, the Secret Service performs background investigations of individuals before they enter either area and supervises the entry and exit of each visitor as they make their scheduled visit. An assortment of records are created as the Secret Service performs these twin tasks. What follows is a description of the different types of records that are created at the White House Complex and the Vice-President's Residence, as well as a summary of the Secret Service's record retention practices.
A. The White House CompleX
The Secret Service monitors visitors to the White House Complex using two interrelated electronic systems known as the Worker and Visitor Entrance System (WAVES) and the Access Control Records System (ACR). These two electronic systems are collectively known as the White House Access Control System (WHACS). 3d Morrissey Decl. at ¶ 8. Both WAVES and ACR records are central to CREW's document request.
The process by which a visitor enters the White House Complex typically begins when an authorized White House pass holder -- who may be (but is not always) a member of the President's or Vice-President's staff*fn3 -- notifies the Secret Service that an individual is scheduled to visit the Complex. 3d Morrissey Decl. at ¶ 9. The White House pass holder, in notifying the Secret Service of the visit, provides the proposed visitor's identifying information, including his name, date of birth and social security number. In addition to this personal information, the White House pass holder will provide the time and location of the scheduled appointment, the name of the person submitting the request, the name of the recipient of the visitor, the date the request was made, and the type of visitor expected, e.g., member of the press or temporary worker. Id. at ¶ 10.
This information is usually transmitted to the Secret Service electronically via the White House Appointment Request Server. Id. at ¶ 11. The White House pass holder will enter the relevant information into the White House Appointment Request Server, which then automatically transmits the information to the WAVES Center. Upon receiving the visitor request, a member of the Secret Service verifies that the person who submitted the request is authorized to the make the requested appointment. Id. The Secret Service officer will then use the identifying information "to determine whether there is any protective concern with giving [the proposed] visitor access to the White House Complex for the meeting." Declaration of Claire M. O'Donnell at ¶ 12.*fn4 Once the Secret Service officer has made "use of the information," the officer will "transmit the information electronically to the Secret Service's White House Access Control System." Id. Before transmitting the information, however, the Secret Service officer may add "additional information" to the visitor's file, such as the results of the background check. 3d Morrissey Decl. at ¶ 11. In short, the Secret Service reviews and supplements the information it receives from the pass holder before transmitting it to the White House Access Control System.
Not all visitor requests are transmitted electronically via the White House Appointment Request Server. In some circumstances a White House pass holder may provide the information to the Secret Service by telephone, facsimile, e-mail, or by dropping off a list in-person, in which case a member of the Secret Service will manually enter the information into the Secret Service's system. Id. at ¶ 11. As with requests submitted electronically, the Secret Service uses the visitor's identifying information to perform a background check on the individual to determine whether he should be allowed to enter the White House Complex. This information is also used to verify the visitor's admission to the Complex at the time of the visit. Id. at ¶ 12.
A WAVES record consists of the information provided by the White House pass holder and any additional information, such as the results of the a background check, added by the Secret Service. 3d Morrissey Decl. at ¶¶ 11, 13. Two fields, known as the "note field" and "comment field," may contain notations created solely by the Secret Service. For example, the Secret Service might indicate in these fields the results of its background check or coded instructions for its officers.
These fields might also contain security information or indicate whether there are specific conditions on a visitor's admission to the Complex. Id. at ¶ 13. Each WAVES record is electronically stored on the Secret Service's computer servers.
When a visitor arrives at the White House Complex he is generally issued an entrance pass, which the visitor will "swipe" over the electronic pass readers that are located at the entrances and exits of the Complex. 3d Morrissey Decl. at ¶ 14. An ACR record is automatically generated each time a pass holder swipes his pass. Each ACR record contains the entrant's name and badge number, the time and date of the entrance or exit, and the specific post at which the swipe was recorded. An ACR record does not indicate who the pass holder was visiting or who requested the visitor's entrance. Id. at ¶ 14. Once the visit has taken place, the WAVES record for the individual is updated electronically with the time and place of the visitor's entry and exit from the White House Complex. Id. at ¶ 15. This information is drawn from the ACR system.
In addition to the WAVES and ACR records, the Secret Service also uses a record known as Secret Service Form 1888 (SSF 1888). 3d Morrissey Decl. at ¶ 16. An SSF 1888 is created as part of the Secret Service's background investigation process for several categories of White House visitors, including temporary workers and individuals who have a criminal background or are thought to pose a potential security risk.*fn5 Finally, there is a collection of documents which the Secret Service simply refers to as "Additional Security-Related Records." 3d Morrissey Decl. at ¶ 17. These are records that are created by the Secret Service as it conducts "additional background checks and other security-related activities regarding certain visitors, who are chosen by the Secret Service based on certain details in their backgrounds [or] the circumstances of their visits." Id. at ¶ 17.*fn6
2. Record Retention Practices
The Secret Service's past retention practices for WAVES and ACR records have proven to be pliant and evolving. Paul Morrissey, the Deputy Assistant Director of the Office of Protective Operations, declares that every 30 to 60 days the Secret Service will copy the WAVES records stored on the Secret Service's "servers" to a compact disc (CD-ROM). 3d Morrissey Decl. at ¶ 18. After making a copy of the records, the Secret Service transfers the CD-ROM containing the WAVES records to the White House Office of Records Management (WHORM). Id. at ¶ 18. A WHORM employee "typically signs a form acknowledging receipt of the records." Id. After delivering the CD-ROM to the WHORM, the Secret Service erases the WAVES records "from its computer system." Id. The Secret Service's practice of purging and overwriting WAVES records that are "older than 60 days" occurred from "at least 2001" until "November 2004." Id. at ¶¶ 18-19.*fn7 This practice ended abruptly in November 2004, at the "request" of the National Archives and Records Administration.*fn8 Id. at ¶ 19. From this point until the present, the Secret Service has begun "temporarily retaining a copy"*fn9 of the WAVES records that its transfers to the WHORM. Id.
Although it has been the practice of the Secret Service to transfer WAVES records to the WHORM, the Secret Service has not always transferred the entire WAVES record. Prior to July 2006, "the Secret Service was removing the note and comment fields from the WAVES records before transferring the records to the WHORM." 3d Morrissey Decl. at ¶ 18. The note and comment fields, as explained above, contain notions created by the Secret Service, such as the results of the Secret Service's background investigation. In July 2006, however, "the Secret Service ceased the practice of removing the note and comment fields when transferring WAVES records." Id. at ¶ 19. Not only that, the Secret Service "retroactively" furnished the "WAVES records to the WHORM that contained these fields for the period from October 12, 2004, to July 10, 2006." Id. at ¶ 19. Although unstated, it appears the note and comment fields that were removed before November 2004, when the National Archives and Records Administration directed the Secret Service to stop deleting the WAVES records, have been permanently deleted. The Secret Service has continued to provide these fields to the WHORM since July 2006. Id.
The Secret Service's policy for retaining ACR records is equally muddled. Mr. Morrissey declares that "the Secret Service and the White House [have] recognized and agreed that ACR records should be treated in a manner generally consistent with the treatment of WAVES records." 3d Morrissey Decl. at ¶ 22. Mr. Morrissey states that the Secret Service and the White House have had this understanding since "[a]t least as early as 2001." Id. Despite this understanding, however, the Secret Service did not begin transferring ACR records to WHORM until May 2006, even though it was routinely transferring WAVES records since at least 2001. Nor was the Secret Service regularly deleting ACR records similar to its routine practice for WAVES records. Instead, in May 2006, the Secret Service transferred to the WHORM all the ACR records accumulated during the presidency of George W. Bush, beginning at 12:00 p.m. on January 20, 2001, to April 30, 2006, en masse. The Secret Service also, for reasons that are not evident from the declaration, "transferred, to the National Archives and Records Administration, the ACR records covering the period from 12:00 p.m. on January 20, 1993, to 12:00 p.m. on January 20, 2001." Id.
In addition to WAVES and ACR records, the Secret Service also transfers to the WHORM certain paper records every 30 to 60 days. These paper records generally consist of requests for access to the White House Complex that have been manually entered into WAVES by the Secret Service, such as large event lists, facsimiles, and e-mails. The Secret Service also transfers some lists and checklists relating to large group appointments. The Secret Service began retaining these materials in the fall of 2006. 3d Morrissey Decl. at ¶ 26.
3. The Memorandum of Understanding
On May 17, 2006, the Secret Service entered into a Memorandum of Understanding (MOU) with the WHORM.*fn10 See 3d Morrissey Decl., Exhibit B. The "purpose" of the MOU was to memorialize the parties' "agreement that WHACS Records" were "not the records of any 'agency' subject to the Freedom of Information Act." Id., Exhibit B at ¶ 17. Rather, the MOU provided that WHACS records "are at all time Presidential Records," which were "under the exclusive legal custody and control of the White House." Id. at ¶ 18. Although, admittedly, "the Secret Service may at times have physical possession of WHACS Records," the MOU reasoned that "temporary physical possession does not alter the legal status of those records, and does not . . . divest the White House of complete and exclusive legal control."*fn11 Id. at ¶ 18(a). The MOU explained that the Secret Service "has no interest whatsoever in preserving or retaining" WHACS records "once a visitor's visit to the White House Complex is complete." Id. at ¶ 21.
In regards to document retention, the MOU provided that "[i]t has been the longstanding practice of the Secret Service to transfer WAVES Records on [a] CD-ROM to [the White House] every 30 to 60 days," and to permanently delete all "records from its computer system" once the transferal is completed. Id. at ¶ 14. "Under this practice," the MOU explains, "the Secret Service [retains] WAVES Records for completed visits for only a brief period, and solely for the purpose of facilitating an orderly . . . transfer of those records to WHORM." Id. at ¶ 14(a). While the MOU acknowledges that "historically" the Secret Service "has retained ACR Records in its computer system without transferring those records" to the White House, this practice changed in 2004 when "the Secret Service and the White House recognized and agreed that ACR Records should be treated in a manner consistent with the treatment of WAVES Records." Id. at ¶ 15. The Secret Service "concluded that ACR Records should be transferred to WHORM and eliminated from [its] files." Id.
B. The Vice-President's Residence
The Secret Service monitors visitors to the Vice-President's Residence in much the same way it monitors the White House Complex. The process typically begins when a member of the Office of the Vice President (OVP) alerts the Secret Service to a scheduled visit. See O'Donnell Decl. at ¶ 17. The OVP staff member will provide the Secret Service with the visitor's identifying information, such as the visitor's name, date of birth, and social security number, and the date and time of the scheduled appointment. As it does at the White House Complex, the Secret Service uses this identifying information to conduct a background investigation on the proposed visitor, "to determine whether there is any protective concern with giving that visitor access to the Vice President's Residence." Id.
While the Secret Service's role at the Vice-President's Residence may be similar to its role at the White House Complex, it relies on a separate record system. See 3d Morrissey Decl. at ¶¶ 31-36. There are no WAVES or ACR records at the Vice-President's Residence. Id. at ¶ 31. Instead, the Secret Service maintains two entry access lists: (1) a daily access list and (2) a permanent access list. A visitor is placed on one of the access lists once the Secret Service determines that the person does not pose a risk to anyone in the Residence and may enter the area. The Secret Service uses the daily access list for individuals who have particular appointments or work orders at the Residence. The Secret Service uses the permanent access list, by contrast, for "individuals who regularly enter the facility, including staff members . . . military personnel, contractors, service workers, and members of the Vice President's family." Id. at ¶ 32.
Both the daily and permanent access lists are given to the individual Secret Service officers stationed at the entrances to the Vice-President's Residence. Id. at ¶ 33. When a visitor enters the Residence, the Secret Service officer working at the entrance will record the visitor's arrival. This information is recorded in what the Secret Service refers to as the "post entry logs." The Secret Service officer will record the name of visitor and the date and time the visitor entered the Residence. This information is all handwritten in the post entry logs. As a result, this information exists only on paper; it is not stored electronically. Id.
Somewhat akin to the post entry logs, the Secret Service officer who is commanding each shift creates a Watch Commander Journal. Id. at ¶ 36. The commanding officer will use the Watch Commander Journal to record the arrival and departure of the Vice-President and his wife, as well as any other security related incidents that occurred during that shift. The "Watch Commander Journals are created to provide situational awareness for watch commanders between shifts and to provide a means for them to apprise themselves of what went on at the residence in their absence." Id. at ¶ 36.*fn12 These journals "are created and used in electronic format," and the Secret Service supervisors "occasionally refer back to them to . . . make staffing level assessment." Id.
In addition to the daily and permanent access lists, post entry logs, and Watch Commander Journals, the Secret Service also relies on several other categories of records, including: (1) an electronic database that contains information on individuals who are seeking access to the Residence; (2) requests for access, received by e-mail or facsimile, that are submitted by OVP staff, military and Secret Service personnel; and (3) lists of guests and workers, prepared by the OVP, who have been invited to the Residence. See 3d Morrissey Decl. at ¶ 34. Finally, the Secret Service generates a document known as a "hit" report for some visitors. A "hit" report is created when the Secret Service discovers something important, like a criminal conviction, while performing a background check on a potential visitor. After completing the ...