Judicial Watch, Inc. v. United States Secret Service
406 U.S. App. D.C. 440
| D.C. Cir. | 2013Background
- Judicial Watch filed a FOIA request for all White House Access Control System (WHACS) visitor records (WAVES and ACR) from Jan–Aug 2009; the Secret Service refused, claiming the records are not "agency records" but Presidential Records subject to the Presidential Records Act (PRA).
- WHACS records are generated from White House pass-holder submissions and from visitors swiping badges; the Secret Service uses them for background checks and admissibility verification and historically transfers them to the White House every 30–60 days per a 2006 MOU.
- The Secret Service usually purges WHACS from its servers after transfer; the MOU states the White House reserves control over WHACS records and the Service will transfer and not retain them.
- The district court held WHACS records are "agency records" under FOIA and ordered disclosure (or exemptions asserted item-by-item); the Secret Service appealed.
- The D.C. Circuit analyzed whether WHACS records are "agency records" under Tax Analysts (creation/obtaining and agency control) and the circuit’s four-factor control test, but also applied a modified test (United We Stand/Goland) where special separation-of-powers considerations arise.
- Court concluded: WHACS records revealing visitors to the President and his immediate staff are not FOIA "agency records" (avoidance of separation-of-powers and PRA fit); WHACS records for offices within the White House Complex that are themselves FOIA-covered agencies (e.g., OMB, CEQ) are agency records and subject to FOIA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Are WHACS (WAVES/ACR) records "agency records" under FOIA? | Judicial Watch: Records were obtained and controlled by Secret Service and thus are agency records subject to FOIA. | Secret Service: Records originated from White House requests and the White House reserves control; thus not agency records but Presidential Records. | Court: Records revealing visits to the Office of the President are not agency records; records revealing visits to FOIA-covered White House offices are agency records. |
| 2. Does the Tax Analysts/four-factor control test make WHACS agency records? | JW: Four-factor test supports agency control (integration, use, possession). | SS: Test is indeterminate here; MOU and practice show relinquished control and limited use/disposal by Service. | Court: Four-factor test is indeterminate; one factor favors Secret Service (intent), one favors JW (reliance/use), two unclear; cannot resolve solely by that test. |
| 3. Are special separation-of-powers considerations implicated so that United We Stand/Goland analysis applies? | JW: Those precedents concern Congress, not intra-executive communications; Exemption 5 could address privilege concerns. | SS: Presidential confidentiality and PRA make disclosure via Secret Service an impermissible end-run around FOIA/PRA; the White House has manifested clear control. | Court: United We Stand/Goland principles apply; strong separation-of-powers and PRA considerations counsel against construing FOIA to permit indirect disclosure of presidential visitor logs. |
| 4. Are WHACS records for non-Office-of-the-President entities (e.g., OMB, CEQ) exempt from FOIA? | JW: All WHACS records sought; where Secret Service has them, they are agency records. | SS: MOU asserts control over all WHACS records but these offices are not part of President’s immediate staff. | Court: WHACS records that reveal visits to FOIA-covered offices located in the White House Complex are agency records and must be disclosed subject to exemptions. |
Key Cases Cited
- Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1979) (President’s immediate staff and units whose sole function is to advise and assist the President are excluded from FOIA)
- U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989) (a document is an "agency record" only if the agency created or obtained it and controls it at the time of the FOIA request)
- United We Stand Am., Inc. v. IRS, 359 F.3d 595 (D.C. Cir. 2004) (documents produced to an agency at the request of a non-FOIA entity may not be agency records if that entity manifested intent to control them)
- Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1979) (Congressional control over documents can place them outside FOIA; courts should avoid enabling indirect access to non-FOIA records)
- Cheney v. U.S. Dist. Court, 542 U.S. 367 (2004) (special separation-of-powers considerations protect Presidential confidentiality and autonomy)
- Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440 (1989) (apply constitutional-avoidance canon to avoid extending statutes into areas raising serious separation-of-powers concerns)
- Armstrong v. Exec. Office of the President, 1 F.3d 1274 (D.C. Cir. 1993) (scope of "Office of the President" exclusion from FOIA)
- Judicial Watch v. Dep’t of Energy, 412 F.3d 125 (D.C. Cir. 2005) (narrow construction to avoid separation-of-powers implications where presidential confidentiality implicated)