331 F. Supp. 3d 27
S.D. Ill.2018Background
- Plaintiffs (Kate Doyle, National Security Archive, CREW, Knight First Amendment Institute) sought under FOIA WAVES and ACR visitor records for President Trump’s White House Complex visits and visits at Mar‑a‑Lago/Trump Tower (Jan 20–Mar 8, 2017); DHS (Secret Service) and EOP are defendants.
- Secret Service maintains electronic systems WAVES (vetting) and EFACS/ACR (access-control swipes); historically transfers post‑visit records to WHORM and intended White House/President control.
- Obama‑era policies (2006 MOU; 2015 DWHIT and 2015 MOU) emphasized White House ownership/control of these records; Obama administration previously posted some visitor‑data online but the policy was rescinded in April 2017.
- Secret Service declined to treat WAVES/ACR records as agency records subject to FOIA, saying they are Presidential Records; its searches for Mar‑a‑Lago records found few responsive documents and produced one redacted State Department email.
- Plaintiffs sued under FOIA, APA, the Federal Records Act (FRA), and the Presidential Records Act (PRA); district court granted summary judgment in part (for defendants) and denied in part, and dismissed FRA/PRA/APA and declaratory relief claims for lack of jurisdiction or discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are WAVES/ACR and similar White House visitor/schedule records "agency records" under FOIA? | Records are held by Secret Service and thus are agency records subject to FOIA. | WAVES/ACR and Presidential schedule records are under White House control and are Presidential Records, not FOIA agency records. | Adopted D.C. Circuit approach (Judicial Watch): such records generally are not agency records when they effectively replicate Presidential/White House calendars or are under White House control; FOIA does apply to records of EOP components that are themselves FOIA agencies. |
| Did Secret Service adequately search for responsive Mar‑a‑Lago records? | Search was incomplete and underinclusive; more records should exist. | Search targeted logical offices and email databases with reasonable search terms; results are a function of methodology not outcome. | Search found adequate as reasonably calculated and supported by affidavits; summary judgment for defendants on adequacy. |
| Were operational/Prime Minister–related documents properly withheld? | Documents were responsive and must be produced (segregable portions). | Some records merely duplicate publicly available schedule facts or are Presidential schedules and thus non‑agency. | Operational documents referring to PM Abe that are responsive cannot be categorically withheld as non‑responsive; agency must disclose segregable non‑exempt portions. |
| Are FRA/PRA/APA challenges to the 2015 MOU justiciable? | MOU unlawfully reclassifies WAVES/ACR as Presidential records and violates FRA/PRA; court review available under APA. | FRA and PRA (and precedent) limit judicial review; these claims are non‑justiciable or governed by administrative enforcement. | Dismissed for lack of subject matter jurisdiction: plaintiffs did not allege a reviewable guideline/classification qualifying for APA review; FRA/PRA enforcement scheme precludes these claims here. |
Key Cases Cited
- Kissinger v. Reporters Comm. for Freedom of Press, 445 U.S. 136 (Sup. Ct.) (President and immediate White House staff outside FOIA agency definition)
- Forsham v. Harris, 445 U.S. 169 (Sup. Ct.) (agency must create or obtain record before FOIA covers it)
- Dep't of Justice v. Tax Analysts, 492 U.S. 136 (Sup. Ct.) (FOIA agency‑record test: created/obtained and controlled at time of request)
- Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208 (D.C. Cir.) (WAVES/ACR records analysis; special policy/separation‑of‑powers considerations favor White House control)
- Armstrong v. Bush, 924 F.2d 282 (D.C. Cir.) (limited APA review of FRA issues; private enforcement limits)
- Armstrong v. Executive Office of the President, Office of Admin., 1 F.3d 1274 (D.C. Cir.) (PRA limits judicial review to initial classification guidelines)
- Main St. Legal Servs., Inc. v. Nat'l Sec. Council, 811 F.3d 542 (2d Cir.) (deference to Presidential statements of intent regarding scope of EOP components vis‑à‑vis FOIA)