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Judicial Watch, Inc. v. United States Secret Service

September 30, 2008

JUDICIAL WATCH, INC., PLAINTIFF,
v.
UNITED STATES SECRET SERVICE, DEFENDANT.
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, PLAINTIFF,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

MEMORANDUM OPINION

Presently before the Court are two motions: plaintiff Judicial Watch, Inc.'s Motion [12] to Compel Defendant United States Secret Service to Comply with this Court's Order and for Sanctions; and defendant United States Secret Service's Motion [14] to Dismiss plaintiff Judicial Watch, Inc.'s suit for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The Court concludes that the Secret Service has complied fully with the Court's order (the Stipulated Agreement). However, by searching only the subset of records in its physical possession at the time of the request, the Secret Service has not fully complied with Judicial Watch's FOIA request.

I. BACKGROUND

A. Procedural Posture

Plaintiff Judicial Watch, Inc. made a Freedom of Information Act ("FOIA") request of defendant United States Secret Service on January 20, 2006.*fn1 Plaintiff requested "[a]ll White House visitor logs from January 1, 2001 to present that reflect the entries and exit(s) of lobbyist Jack Abramoff from the White House." (Compl. 1.) After defendant did not release any records within the time period provided by FOIA, plaintiffs filed suit on February 22, 2006. On April 25, 2006, the parties entered into a stipulated agreement wherein defendant agreed to produce "any and all documents responsive to Plaintiff's . . . request, without redactions or claims of exemption," by May 10, 2006. (Joint Stipulation and Agreed Order 1.) After querying the two records systems it considered relevant-Access Control Records System ("ACR") records and Workers and Visitors Entry System ("WAVES") records-defendant released two ACR records on May 10, 2006, and stated that there were no more responsive records. Plaintiff moved to compel compliance with the Stipulated Agreement and for sanctions on May 16, 2006. Defendant moved to dismiss that same day.

While both motions were pending, defendant discovered that additional WAVES records predating October 2004 had been inadvertently retained on two Secret Service computers used to transfer WAVES records to CD-ROM. (2d Lyerly Decl. ¶3 (July 7, 2006).) Defendant then had an internal team search those computers for additional WAVES files. (Id. ¶ ¶4--8.) That search yielded six additional responsive WAVES records (id. ¶9), which defendant released to plaintiff on July 7, 2006. Both parties have addressed the July 2007 disclosure in their filings.

B. Background on ACR Records and WAVES Records

1. ACR Records

"ACR records consist of records generated when a pass holder, worker, or visitor swipes his or her permanent or temporary pass over one of the electronic pass readers located at entrances to and exits from the White House Complex. ACR records include information such as the pass holder's name and badge number, the time and date of the swipe, and the post at which the swipe was recorded." (Lyerly Decl. ¶7 (May 16, 2006).) ACR records are not created for every White House entrant, but only for those who pass through a turnstile with an electronic pass reader. (See id. ¶16.) ACR records are stored in a electronic database searchable by visitor name. (Id. ¶12.)

2. WAVES Records

"WAVES records consist of records generated when information is submitted to the Secret Service about workers and visitors whose business requires their presence at the White House Complex. WAVES records include information additional to that in the ACR records." (Id. ¶8.) Before they are transferred to CD-ROM, WAVES files are stored on a server. (2d Lyerly Decl. ¶10 (July 7, 2006).) Thirty to sixty days after the visit, the records are transferred to individual agency computers, from which they are transferred to CD-ROMs (id.), which are searchable by visitor name (Lyerly Decl. ¶13 (May 16, 2006)). Prior to October 2004, the Secret Service had a "longstanding practice" of transferring those CD-ROMs to the White House, after which the transferred records were deleted from the Secret Service's system. (Id. ¶10.) As a result, at the time of plaintiff's FOIA request defendant only possessed WAVES records dating back to October 2004. (Id. ¶11.)

II. ANALYSIS: MOTION TO COMPEL

Plaintiff moves to compel compliance on the argument that defendant breached the Stipulated Agreement in both its initial May 10, 2006 disclosure (two ACR records) and its July 7, 2006 disclosure (six WAVES ...


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