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Judicial Watch, Inc v. United States Secret Service

August 17, 2011

JUDICIAL WATCH, INC., PLAINTIFF,
v.
UNITED STATES SECRET SERVICE, DEFENDANT.



The opinion of the court was delivered by: Beryl A. Howell United States District Judge

MEMORANDUM OPINION

Plaintiff Judicial Watch, Inc. brought this case to compel Defendant U.S. Secret Service to respond to a Freedom of Information Act ("FOIA") request. The plaintiff's FOIA request, sent on August 10, 2009, sought all White House visitor logs from the date of President Barack Obama's inauguration, January 20, 2009, through "the present." The FOIA generally requires the disclosure, upon request, of records held by a federal government agency unless the records are protected from disclosure under one of nine FOIA exemptions. In this case, the defendant has withheld all requested records, asserting that, while the Secret Service is an executive agency subject to FOIA, the documents in question are not agency records subject to FOIA disclosure. The plaintiff has moved for partial summary judgment on the issue of whether the requested documents are agency records subject to FOIA. The defendant has filed a cross-motion for summary judgment asking the Court to hold that the documents are not subject to FOIA. For the reasons discussed below, plaintiff's motion for partial summary judgment is granted and the defendant's cross-motion for summary judgment is denied.

I.BACKGROUND

On August 10, 2009, Plaintiff Judicial Watch, Inc. sent a FOIA request to Defendant United States Secret Service seeking access to "[a]ll official visitor logs and/or other records concerning visits made to the White House from January 20, 2009 to the present." Compl. ¶¶ 3-5. The Secret Service responded to Judicial Watch's request with a letter, dated October 8, 2009, which informed Judicial Watch that the Secret Service interpreted the request to encompass "Access Control Records System (ACR) records and/or Workers and Visitors Entry System (WAVES) records." Id. ¶ 7. These two overlapping sets of records are used by the Secret Service to clear and track visitors to the White House Complex.

WAVES records consist primarily of information provided to the Secret Service by authorized White House Complex pass holders regarding proposed visitors to the White House Complex. Def.'s Statement of Mat. Facts Not In Dispute ("Def.'s SMF") ¶¶ 4, 6. The authorized pass holder electronically submits to the Secret Service information such as the identifying information of the visitor, including name, date of birth, and Social Security number, the date, time and location of the planned visit, the name of the staff member submitting the request, the name of the person to be visited, and the date of the request. Id. ¶ 5. The Secret Service uses this information to perform background checks on the proposed visitors to determine if there are any security concerns and to verify the visitor's admissibility at the time of his or her visit. Id. ¶ 7.

Once an individual is cleared into the White House Complex, he or she is normally issued a visitor pass. The use of these passes at electronic pass readers located at the entrances to and exits from the White House Complex generates the second type of records -- ACR records. Id. ¶ 9. The ACR records include information such as the visitor's name and pass number, the date and time of the swipe, and the post at which the swipe was recorded. Id. ¶ 10. After a visit, WAVES records are normally updated electronically with ACR information regarding the time and place of entry and exit. Id. ¶ 11.

On September 15, 2009, in the interest of public transparency, the White House adopted a policy of voluntary public disclosure for WAVES records, subject to certain exceptions. See Declaration of Philip C. Droege, dated April 21, 2010, ("Droege Decl.") ¶¶ 16-18.

In the October 8, 2009 response to plaintiff's FOIA request, the Secret Service informed Judicial Watch that it had determined that WAVES and ACR records "are not agency records subject to the FOIA." Compl. ¶ 7. More specifically, the letter stated that the government's position is that "these records are records governed by the Presidential Records Act, 44 U.S.C. § 2201 et seq., and remain under the exclusive legal custody and control of the White House Office and the Office of the Vice President." October 8, 2009 Letter, Ex. E to Def.'s Mem.

Judicial Watch then sent an administrative appeal letter to the Secret Service contesting the Secret Service's denial of the request and, specifically, the assertion by the Secret Service that the requested records are not agency records subject to FOIA. Compl. ¶ 8. The Secret Service denied the appeal. Id. ¶ 9. Judicial Watch then filed the action currently before the Court on December 7, 2009.

On February 22, 2010, Judicial Watch moved for partial summary judgment, pursuant to Federal Rule of Civil Procedure 56, on the issue of whether the Secret Service visitor logs are agency records subject to the Freedom of Information Act, 5 U.S.C. § 552. In response, on April 21, 2010, the Secret Service filed a cross-motion for summary judgment on the same issue.*fn1

II. STANDARD OF REVIEW

Congress enacted FOIA to promote transparency across the government. See 5 U.S.C. § 552; Quick v. U.S. Dep't of Commerce, Nat'l Inst. of Standards & Tech., No. 09-02064, 2011 WL 1326928, at *3 (D.D.C. April 7, 2011) (citing Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984)). The Supreme Court has explained that FOIA is "a means for citizens to know 'what their Government is up to.' This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-172 (2004) (internal quotations and citations omitted). "The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

The strong interest in transparency must be tempered, however, by the "legitimate governmental and private interests [that] could be harmed by release of certain types of information." United Techs. Corp. v. U.S. Dep't of Defense, 601 F.3d 557, 559 (D.C. Cir. 2010); see also Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992). Accordingly, Congress included nine exemptions permitting agencies to withhold information from FOIA disclosure. 5 U.S.C. § 552(b). "These exemptions are explicitly made exclusive, and must be narrowly construed." Milner v. Dep't of the Navy, 131 S. Ct. 1259, 1262 (2011) (internal quotations and citations omitted) (citing FBI v. Abramson, 456 U.S. 615, 630 (1982)); see also Pub. Citizen, Inc. v. Office of Management and Budget, 598 F.3d 865, 869 (D.C. Cir. 2010).

Pursuant to Federal Rule of Civil Procedure 56, the Court will grant a motion for summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law" based upon the pleadings, depositions, and affidavits and other factual materials in the record. Fed. R. Civ. P. 56(a), (c); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). The Court "need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3). The Court must view all inferences in a light most favorable to the non-moving party. Tao, 27 F.3d at 638 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 255 (1986)). The burden is on the moving party to demonstrate that there is an "absence of a genuine issue of material fact" in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

A defendant is entitled to summary judgment in a FOIA case if it demonstrates that no material facts are in dispute, it has conducted an adequate search for responsive records, and each responsive record, which is located, was either produced to the plaintiff or is exempt from disclosure. See Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 368-69 (D.C. Cir. 1980). To meet its burden, the defendant may rely on relatively detailed, non-conclusory declarations. McGehee v. CIA, 697 F.2d 1095, 1102 (D.C. Cir. 1983). The defendant is entitled to summary judgment when "it demonstrates that each document sought is not subject to FOIA's disclosure requirements." Citizens for Responsibility and Ethics in Wash. v. U.S. Dep't of Homeland Sec., 527 F. Supp. 2d 76, 88 (D.D.C. 2007) (hereinafter, "CREW") (citing Exxon Corp. v. F.T.C., 663 F.2d 120, 126 (D.C. Cir. 1980)). Agency decisions to withhold information under the Freedom of Information Act are reviewed de novo by this court. Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252, 256 (D.D.C. 2004).

III. DISCUSSION

Judicial Watch, in moving for partial summary judgment, has requested the Court declare that the Secret Service visitor logs are agency records subject to FOIA. In response, the Secret Service has filed a cross motion for summary judgment on the same issue. Both parties appear to agree "that there is no genuine dispute as to any material fact," Fed. R. Civ. P. 56(a), and disagree simply about how the law applies to the facts at hand. See Pl.'s Mem. in Supp. of Mot. for Partial Summ. J. ("Pl.'s Mem.") at 1 ("[N]o disputes of material fact exist as to the nature of the records. . . ."); Def.'s Cross-Mot. for ...


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