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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 U.S. Department of Homeland Security's Motion [45] to Dismiss Plaintiff's FOIA Claims.*fn1 Plaintiff Citizens for Responsibility and Ethics in Washington ("CREW") alleges that the Department violated the Freedom of Information Act by (I) failing to release records requested by CREW, (II) failing to respond to CREW's request within the twenty-day statutory period, and (III) failing to grant CREW's request for expedited response. Defendant has fully complied with plaintiff's FOIA request as to ACR records and records at the Vice President's residence. However, because defendant has not yet made an adequate search of WAVES records, its motion shall be denied in that respect. Plaintiff's request for discovery shall be denied.

I. BACKGROUND

In early 2006 plaintiff CREW made a Freedom of Information Act ("FOIA") request of defendant U.S. Department of Homeland Security seeking records of visits made by eight named individuals*fn2 to the White House or the residence of the Vice President. (2d Am. Compl. ¶ 24.) After receiving no conclusive response from defendant within the twenty-day statutory period provided by FOIA, plaintiff filed suit. (Id.) In responding to plaintiff's request, defendant searched records systems at both the White House complex and the Vice President's residence.

Defendant searched two records systems at the White House: Access Control System records ("ACR records") and Workers and Visitor Entrance System records "("WAVES records"). (Lyerly Decl. ¶10 (Sept. 21, 2006).) Defendant's declarations describe the two records systems:

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.

WAVES records consist of records generated when information is submitted by a White House pass holder to the Secret Service about workers and visitors who need access to the White House Complex to conduct business or attend social events. WAVES records include the following information submitted by the pass holder: the visitor's name, date of birth, and Social Security number; the time and location of the planned visit; the name of the pass holder submitting the request; and the date of the request. They may also include [security-related information].

(Id. ¶¶7, 8.) Defendant noted that until October 2004 it had a "longstanding practice" of transferring WAVES records to the White House after thirty to sixty days, at which point defendant erased those records from its system. (Id. ¶13.) Thus, at the time of plaintiff's request, defendant did not physically possess-and did not search-WAVES records predating October 2004. (Id.) Defendant did locate some pre--October 2004 WAVES data on the hard drives of two computers that had been used in the transfer/erase process. Those computers were searched for records responsive to plaintiff's request. (Id. ¶22.) These ACR and WAVES searches located a number of responsive records. (Id. ¶ ¶15, 22.)

Defendant also searched records systems at the Vice President's residence. Defendant searched the Secret Service file server at the residence, Microsoft Outlook e-mails on command post computers, the access list database system, and the entry logs. (Id. ¶27.) No responsive records were located. (Id. ¶28.)

Before releasing the responsive ACR/WAVES records to plaintiff, defendant redacted some information from WAVES records. Defendant redacted visitors' dates of birth and social security numbers, as well as "limited information from background checks performed by the Secret Service and coded instructions to Secret Service officers who work in the Complex." (Id. ¶29.) Responsive records were then released to plaintiff. (Id. ¶30.)

II. DISCUSSION

A. Legal Standard

The mootness doctrine compels federal courts to dismiss an action for lack of subject matter jurisdiction if there is no ongoing case or controversy. In FOIA cases, there remains no case or controversy if the defendant agency has already fully complied with the plaintiff's information request, and the action can be dismissed. See Tijerina v. Walters, 821 F.2d 789, 799 (D.C. Cir. 1987) ("[I]f we are convinced [the agency has], however belatedly, released all nonexempt material, we have no further judicial function to perform under the FOIA.") (quoting Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982)). See also Kissinger v. Reporters Comm. for Freedom of the Press, 100 S.Ct. 960, 968 (1980) ("Under 5 U.S.C. § 552(a)(4)(B) federal jurisdiction is dependent upon a showing that an agency has (1) 'improperly'; (2) 'withheld'; (3) 'agency records.'"). Thus the issue here is whether defendant has complied with plaintiff's FOIA request.

To comply with a FOIA request, an agency is required to execute a search that is "reasonably calculated to uncover all relevant documents." Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). Thus the question is not whether the agency has found every possible responsive document, but whether the search was reasonable in light of the relevant circumstances. See Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) ("[T]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by ...


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