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Citizens for Responsibility and Ethics in Washington v. U.S. Dep't of Homeland Security

January 9, 2009


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


This matter comes before the Court on two sets of filings: the parties' cross Motions ([64] and [68]) for Summary Judgment on Claims One and Two; and plaintiff's Motion [51] for Summary Judgment on Claims Three and Four. Plaintiff Citizens for Responsibility and Ethics in Washington ("CREW") is suing the U.S. Department of Homeland Security ("DHS") and Adrienne Thomas, Acting Archivist of the United States ("Archivist").*fn1 Plaintiff articulates FOIA claims against DHS (Claims One and Two) and Federal Records Act ("FRA") claims against both DHS and the Archivist (Claims Three and Four).

On Claims One and Two, the Court will deny defendants' motion [64] and grant plaintiff's motion [68]. As for Claims Three and Four, the Court will grant in part and deny in part plaintiff's motion [51] for summary judgment. Because the facts relevant to the FOIA claims are different than those relevant to the FRA claims, this opinion contains a separate factual background for each set of claims.


A. Factual and Procedural Background

In October 2006, plaintiff made a FOIA request of DHS seeking records of visits by nine named individuals to either the White House or the Vice President's residence ("VPR"). (Compl. Ex. A.) The Secret Service, a component of defendant, creates various types of records associated with visitors to either the White House complex or the VPR. The main records of visitors to the White House are Access Control Records System ("ACR") records and Worker and Visitor Entrance System ("WAVES") records. Other security-related records are also maintained. VPR visit records include post entry logs (handwritten entry records), permanent and daily access lists (clearance lists for regular visitors and specific visitors, respectively), event lists (clearance lists for particular events), and e-mails requesting access to VPR.*fn2 The sought records contained information such as the visitor's name, date of visit, and in some cases the person visited.*fn3 After DHS failed to fulfill plaintiff's request within the time allowed by FOIA, plaintiff filed suit. (Compl.)

In December 2007, this Court denied defendants' Motion [29] for Summary Judgment. CREW v. DHS, et al., 527 F. Supp. 2d 76 (D.D.C. 2007). That opinion established that the records sought by plaintiff, including certain records that had been transferred out of the agency, were in fact subject to FOIA. Id. at 98. Defendants appealed that decision, and the D.C. Circuit dismissed the appeal for lack of jurisdiction in July 2008. 532 F.3d 860 (D.C. Cir. July 11, 2008). In September, defendants filed with the Court a letter sent by DHS to plaintiff. (Defs.' Notice of Filing (Amended) [57] (Sept. 25, 2008).) The notice and letter indicated that DHS did not plan to release any records responsive to plaintiff's FOIA request because, among other reasons, any such records would fall under the "presidential communications privilege" and were therefore protected from disclosure by FOIA Exemption 5. (Id.) In connection with that position, DHS indicated that it would neither confirm nor deny the existence of any responsive records, as withholding some records but not others would reveal the identities of persons engaged in confidential communications with the President or his advisors. (Id.; see also Defs.' Mot. at 2--3, 11--12.)

Defendants filed their motion thereafter, which makes the same claim as to the extent of the presidential communications privilege. Plaintiff responded with its own cross-motion for summary judgment, contesting defendants' claim and arguing that DHS has not yet performed an adequate search as required by FOIA.

B. Legal Framework

1. FOIA Exemption 5, the Presidential Communications Privilege, and the "Glomar Response"

Exemption 5 protects from FOIA's disclosure requirements "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). This language has been construed as covering materials "normally privileged in the civil discovery context." N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).

One such civil discovery privilege is the presidential communications privilege. "[T]here is 'a presumptive privilege for Presidential communications,' which is 'fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.'" Judicial Watch, Inc. v. Dep't of Justice, 365 F.3d 1108, 1113 (D.C. Cir. 2004) (quoting U.S. v. Nixon, 418 U.S. 683, 708 (1974)). The privilege protects "documents or other materials that reflect presidential decisionmaking and deliberations and that the President believes should remain confidential." In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir. 1997). The privilege extends not only to direct communications with the President, but also "to communications authored or solicited and received by those members of an immediate White House advisor's staff who have broad and significant responsibility for investigating and formulating the advice to be given to the President on a particular matter." Id. at 757.

Courts have recognized that in some cases an agency claiming a FOIA exemption can also refuse to either confirm or deny the existence of responsive records-a so-called "Glomar response." See Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) (approving such a response by the CIA regarding the secret "Glomar Explorer" vessel). Such a response is appropriate "where to answer the FOIA inquiry [as to the existence or nonexistence of responsive records] would cause harm cognizable under an FOIA exception." Gardels v. CIA, 689 F.2d 1100, 1003 (D.C. Cir. 1982).

2. 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.

The operative question for summary judgment motions in FOIA cases is whether the agency has executed a search "reasonably calculated to uncover all relevant documents." Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). 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 Servs. 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)). If the agency claims that a document is exempt from disclosure, the agency bears the burden of showing that the claimed exemption applies. See 5 U.S.C. § 552(a)(4)(B); U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989).

C. Analysis

In order to prevail on its motion, defendant must show that it has conducted an adequate search and that any responsive records it has withheld are covered by an applicable FOIA exemption. If defendant cannot make that showing, plaintiff will prevail on its cross-motion for summary judgment.

1. Adequacy of DHS's Search

As a preliminary matter, unless defendant's privilege claim prevails, defendant has not conducted an adequate search for responsive records.As plaintiff notes, DHS's September 2008 letter indicated that DHS had searched "records currently retained by the Secret Service," the Secret Service being a component of DHS. (Defs.' Notice of Filing (Amended) [57] Ex. (Sept. 25, 2008).) The letter did not indicate that records not currently retained by the Secret Service had been searched.*fn4 But this Court has already held that visit records remain under the legal "control" of DHS-and are thus subject to FOIA-even if they are transferred to the White House or the Office of the Vice President and deleted from DHS's internal files. CREW v. DHS, 527 F. Supp. 2d at 98. Until DHS executes a search of all agency records, including those records which may not be "currently retained" by the agency, it has not fulfilled its obligation under FOIA to execute a adequate search.

2. Applicability of the Presidential Communications Privilege to Records at Issue

The more substantial issue presented by these motions is whether the presidential communications privilege extends far enough to cover the identities of visitors to the White House and the Vice President's residence. If it does, then all of the records sought by plaintiff are exempt from FOIA, and DHS has no disclosure obligations related to plaintiff's FOIA request. If it does not, then DHS remains obligated under FOIA to produce the requested records. The Court concludes here that the presidential communications ...

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