803 F. Supp. 2d 51
D.D.C.2011Background
- Judicial Watch seeks FOIA records—the White House visitor logs from Jan 20, 2009 to present—from the Secret Service.
- Secret Service withheld WAVES and ACR records, arguing they are Presidential records not agency records subject to FOIA.
- Whose records are at issue? WAVES/ACR; WAVES contains proposed visitor data, background checks, and visit details; ACR records log entry data.
- White House adopted voluntary WAVES disclosure on Sept 15, 2009; Secret Service later contends records are under Presidential custody.
- Judicial Watch administratively appealed; Secret Service denied appeal; case filed Dec 7, 2009; cross-motions for summary judgment followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are WAVES and ACR records agency records under FOIA? | Judicial Watch argues yes; records are created/obtained by agency and under its control. | Secret Service argues no; records are Presidential/White House custody not FOIA agency records. | WAVES and ACR are agency records subject to FOIA. |
| Does FOIA avoidance apply to avoid constitutional issues? | Judicial Watch contends no constitutional obstacle to FOIA coverage. | Secret Service argues avoiding FOIA is necessary to protect executive confidentiality. | Constitutional avoidance not applicable; statute unambiguous and exemptions available. |
| Can processing the request raise national security concerns to bar disclosure? | Judicial Watch asserts processing is required with segregable disclosures possible. | Secret Service claims burden and risk of revealing sensitive information would be excessive. | Duty to process; exemptions may apply; no blanket rejection based on burden or security. |
Key Cases Cited
- United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136 (1989) (two-part test for agency records: creation/obtainment, control)
- Citizens for Responsibility and Ethics in Washington v. U.S. Dep’t of Homeland Sec., 527 F. Supp. 2d 76 (D.D.C. 2007) (agency must satisfy FOIA withholdings; CREW standard)
- Wash. Post v. U.S. Dep’t of Homeland Sec., 459 F. Supp. 2d 61 (D.D.C. 2006) (FOIA records, agency control factors; later vacated on other grounds)
- Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504 (D.C. Cir. 2011) (disclosure exemptions; mosaic theory considerations)
- L.A. Times v. U.S. Dep’t of Labor, 483 F. Supp. 2d 975 (C.D. Cal. 2007) (withholding and exemptions in FOIA context)
- INS v. St. Cyr, 533 U.S. 289 (2001) (constitutional avoidance doctrine; open to interpretation)
- FBI v. Abramson, 456 U.S. 615 (1982) (FOIA exemptions construed narrowly)