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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 is defendant United States Secret Service's Supplemental Motion [36] for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. Because it is unconvinced of either the reasonableness of the Secret Service's search or the FOIA exemptions claimed for Sensitive Security Records, the Court does not consider summary judgment appropriate at this time.

I. BACKGROUND

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. After later discovering responsive WAVES records in an unexpected location, defendant released six additional WAVES records.

Defendant has since determined that a heretofore-unsearched category of records, Sensitive Security Records ("SSRs"), should have been considered potentially responsive to plaintiff's FOIA request. SSRs "are created in the course of conducting 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 and/or the circumstances of their visits." (2d Morrissey Decl. ¶3 (Nov. 30, 2007).) Persons whose visits are reflected by SSRs "should also be reflected in [WAVES] records." (Id.) Defendant moved for summary judgment, arguing (1) that it has fully complied with plaintiff's FOIA request and (2) that FOIA exemptions protect SSRs from disclosure.

II. DISCUSSION

Defendant puts forth several arguments in favor of summary judgment. First, defendant argues that it has discharged its obligation under FOIA by making a reasonable search. As to SSRs in particular, defendant claims that, for security reasons, it can neither confirm nor deny the existence of responsive SSRs (a so-called "Glomar response"). Defendant also argues that SSRs are categorically protected by FOIA exemptions 2, 7(E), and 7(F). The Court finds that defendant has not made a reasonable search, a Glomar response is inappropriate here, and defendant has not convincingly shown that SSRs fall within the claimed exemptions.

A. Legal Standard for Summary Judgment

Summary judgment should be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The party seeking summary judgment bears the initial burden of production as to the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine issue of material fact exists if the evidence, viewed in the light most favorable to the nonmoving party, "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). But a genuine issue requires more than "a scintilla of evidence" supporting the nonmoving party; "there must be evidence on which the jury could reasonably find" for the nonmoving party. Id. at 252.

In a FOIA case, summary judgment can be awarded based on information provided by the agency in affidavits or declarations. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.1981). Agency affidavits or declarations establishing the adequacy of a search must be "relatively detailed and non-conclusory." SafeCard Services v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Such affidavits or declarations "are accorded a presumption of good faith." Id. "An agency must demonstrate that 'each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements.'" Long v. Dep't of Justice, 450 F. Supp. 2d 42, 54 (citing Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted)).

B. Defendant Has Not Yet Made a Reasonable Search, But Its Exemption Claims Do Not Violate the Stipulated Agreement

This Court's memorandum opinion and order partially denying defendant's motion to dismiss made clear that defendant has not yet performed the "reasonable" search required by FOIA. See Mem. Op. [53] & Order [54] (Sept. 30, 2008). At issue there was whether defendant was required to search WAVES records that had already been transferred to the White House and internally erased. This Court found that the transferred and deleted records were still "agency records," and thus defendant must search those records to fulfill its FOIA obligations. For that reason alone, summary judgment cannot be granted here.

Plaintiff argues in opposition that by claiming exemptions for SSRs defendant has breached the April 2006 Stipulated Agreement. The Court disagrees. The Stipulated Agreement, signed before any records had been released, did state that defendant would produce "any and all documents responsive to Plaintiff's . . . request, without redactions of claims of exemption" by May 10, 2006. (Joint Stipulation and Agreed Order 1.) But defendant's briefs indicate that it did not at that time consider SSRs to be a potentially responsive category of records. (See Supp. Mot. for Summary Judgment 1--2 ("Since defendant conducted its original search and document production (and the related follow-up searches and document production . . . ), it has identified as potentially responsive other categories of records, including ...


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