Protecting the White House Visitor Logs

A federal district court has just handed the Secret Service another defeat in its attempts to dance around the Freedom of Information Act and protect White House visitor logs. (Judicial Watch v. United States Secret Service, D.D.C. No. 09-2312 (BAH), 8/17/11)

Judicial Watch asked the Secret Service (SS) in August 2009 for a copy of all White House visitor logs from the date of President Obama’s inauguration. The SS responded that, while it is an executive agency subject to FOIA, those particular records are not their records to release. Rather, under a Memorandum of Understanding between the SS and the White House (WH), these records are turned over by the SS, which generates and uses the records, to the WH Office of Records Management. (Opinion p. 10)

The documents at issue are the Access Control Records System (ACR) and the Workers and Visitors Entry System (WAVES) records. Both sets of records are used by the SS to clear and track visitors to the White House. (p. 2)

The dispute ended up before the federal district court in the District of Columbia. The court held that the FOIA does indeed apply to these SS records and the agency must comply with the request. (p. 19)

Citing the Supreme Court’s two-part test for evaluating whether agency records fall under FOIA, and noting that two other judges in the D.C. District have found that the WAVES and ACR records are subject to FOIA, Judge Howell now joins in that opinion. (p. 7)

In short, because SS is able to use and contribute to the disputed records and those records are integrated into the SS records system, the agency cannot dodge FOIA by citing a MOU with the White House: “….[U]se trumps intent….” (p. 14)

As to the SS argument that their records should not be caught up in FOIA because to do so would interfere with the constitutional duties of the President and Vice President, the court held that the agency “cannot transmute the meaning of an unambiguous statute [FOIA] by asserting constitutional interference…” and noted that it was “skeptical” that there is in fact interference. (p. 15)

Apparently determined to force the issue to closure, Judge Howell ordered the parties to get back to him within 20 days as to how they have resolved the matter. (p. 19)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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