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Media Alerts - Judicial Watch, Inc. v. United States Secret Service
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August 30, 2013
  Judicial Watch, Inc. v. United States Secret Service
Headline: D.C. Circuit holds Secret Service records of President's visitors are not subject to disclosure under the Freedom of Information Act.

Area of Law: FOIA, Separation-of-Powers

Issue Presented: Whether White House Access Control System (WHACS) records are "agency records" under the Freedom of Information Act.

Brief Summary: Judicial Watch, Inc. filed a Freedom of Information Act (FOIA) request with the Secret Service seeking records of every visitor to the White House Complex over a period of seven months. The Secret Service denied the request, claiming that the records are not "agency records" subject to FOIA but are "Presidential Records" subject to the Presidential Records Act, which are not subject to disclosure. Judicial Watch filed suit to compel disclosure, and the United States District Court for the District of Columbia found that the records at issue qualify as "agency records" within the meaning of FOIA. The district court granted summary judgment to Judicial Watch, rejecting the argument that disclosure would raise separation-of-powers concerns and place impermissible burdens on senior White House advisors. The district court applied the two-pronged test of Tax Analysts v. United States Dep't of Justice and found that, because the agency obtained the records and had control over them, they were agency records. The district court rejected the Service's separation-of-powers argument, finding that the Constitutional Avoidance Doctrine is not applicable because the court was not faced with the interpretation of an ambiguous statute.

The United States Court of Appeals for the District of Columbia Circuit reversed in part, holding both that the Secret Service did not have the requisite control for the records to qualify as "agency records" and that separation-of-powers concerns provide an additional and more fundamental reason to find that the logs of visits to the Office of the President are not "agency records." The D.C. Circuit applied the modified control test set forth in United We Stand Am., Inc. v. IRS. The court found that WHACS records are created in response to requests by the Office of the President, a governmental entity not covered by FOIA, and that the Office of the President has manifested a clear intent to control the documents. The court also found that, since the statute was ambiguous, constitutional avoidance required an interpretation that did not result in a "potentially serious congressional intrusion into the conduct of the President's daily operations."

Finding that the offices located on the grounds of the White House Complex not a part of the President's immediate staff were agencies, the court concluded that records of visitors to those offices are "agency records." The D.C. Circuit affirmed the district court's decision with regard to the WHACS records of visitors to those offices.

For the full text of this opinion, please visit$file/11-5282.pdf

Panel (if known): Garland, Sentelle, and Williams

Argument Date (if known): September 18, 2012

Date of Issued Opinion: August 30, 2013

Docket Number: 11-5282

Decided: Affirmed in part, Reversed in part

Case Alert Author: Joseph T. Maher, Jr.

Counsel (if known): Mark B. Stern, Tony West, Ronald C. Machen Jr., Beth S. Brinkmann, Michael S. Raab, Abby C. Wright, and Brad P. Rosenberg for appellant. James F. Peterson and Paul J. Orfanedes for appellee.

Author of Opinion: Garland

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 08/30/2013 05:27 PM     DC Circuit  

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