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

January 9, 2009

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, PLAINTIFF,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

This matter comes before the Court on defendant's Motion [9] for Summary Judgment and plaintiff's subsequent Cross-Motion [10] for Summary Judgment. For the reasons contained herein, the Court will grant summary judgment for plaintiff.

These motions raise legal issues identical to some addressed by this Court in parallel litigation, Citizens for Responsibility and Ethics in Washington v. U.S. Department of Homeland Security, et al., No. 06-1912, in which the same plaintiff sought the same type of records from the same defendant. For those issues, this opinion will not repeat at length the legal analysis from opinions in that litigation. It will instead summarize the analyses when applicable and refer to 06-1912 opinions for a more detailed explanation.

I. FACTUAL BACKGROUND

In July 2008, plaintiff filed a FOIA request with defendant seeking agency records related to visits by Stephen Payne to the White House or the Vice President's residence ("VPR").*fn1 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 Other records reflecting White House visitors include parking records, daily briefing sheets, schedules, name check reports, e-mail access requests, and "Visitor Multiple Entry Reports."*fn3 When defendant did not produce responsive records within the period allowed by statute, plaintiff initiated this action.

II. 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 records are exempt from disclosure, it 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).

III. ANALYSIS

Defendant makes three main arguments in favor of its motion. First, defendant contends that the records sought by plaintiff are not "agency records" subject to FOIA. Second, defendant argues that FOIA must be construed as excluding these records so as to avoid "serious questions" about its constitutionality. Finally, defendant claims that the sought records reflect presidential communications and thus are exempt from disclosure under FOIA Exemption 5. This Court's opinions in the parallel case, No. 06-1912, reject all three of these arguments. This opinion rejects them as well, for the same reasons.

A. The Records Sought by Plaintiff Are Agency Records

The Court's December 17, 2007 opinion in the parallel litigation No. 06-1912 established that many of the records sought by plaintiff here-WAVES records, ACR records, and the various types of VPR records-are "agency records" subject to FOIA. Citizens for Responsibility and Ethics in Wash. v. U.S. Dep't of Homeland Security, 527 F. Supp. 2d 76, 88--98 (D.D.C. Dec. 17, 2007). Defendant recognizes this prior adverse ruling, but briefs the issue in detail anyway "to preserve its record for future appeal." (Def.'s Mot. at 13.) Defendant offers no new theories as to why these records should not be considered "agency records" under FOIA. Because the defendant bears the burden of demonstrating that the sought records are not subject to FOIA, U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989), the Court maintains its position that those records are subject to FOIA.

Defendant points out in a footnote that the request here may implicate "a small category of records" that were not at issue in 06-1912 (parking records, daily briefing sheets, schedules, name check reports, e-mail access requests, and "Visitor Multiple Entry Reports"). (Id. at 13 n.14.) Mention of these records was limited to this footnote only. The footnote contained one or two brief justifications for why defendant believed each type of record was not an "agency record." This passing mention does not give the Court enough basis to hold that these new types of records are also "agency records." At the same time, though, it falls short of establishing that the records are not agency records. The agency bears the burden of showing that those ...


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