Case Detail

FOIA Project Annotation: Relying heavily on previous district court rulings directly on point, Judge Beryl Howell has ruled that visitors' log records for the White House and the Vice President's residence are agency records of the Secret Service and must be processed pursuant to a FOIA request from Judicial Watch. During the Bush administration, the government had contended that, pursuant to a memorandum of understanding, the records were not agency records, but, instead, presidential records reflecting White House business. In cases brought by the Washington Post and CREW, two district court judges concluded that, regardless of the fact that the Secret Service typically turned over the records to the White House, the agency created the records for an agency function and used the records for that function, thus exercising the necessary custody and control. Although the Obama administration settled the CREW litigation by agreeing to voluntarily make the bulk of visitors' records available routinely, Judicial Watch challenged its continued reliance on the theory that the records were not agency records and filed suit, insisting that all visitors' records were subject to FOIA. Howell first noted that "the Secret Service seeks to emphasize the role that Presidential and Vice-Presidential staff members play by providing much of the information that makes up the records," particularly information about visitors and who they were visiting. She then pointed out that "regardless of what information may be supplied by outside actors, the [visitors' records] are largely generated by the Secret Service, and are undisputedly obtained by the Secret Service. Indeed, the records are generated specifically for use by the Secret Service." Howell then turned to the D.C. Circuit test for determining what constituted controlâ€"the intent of a document's creator to retain or relinquish control, the ability of the agency to use and dispose of the record as it sees fit, the extent to which agency personnel have read or relied upon a document, and the degree to which the document is integrated into the agency's record system or files. Based on the MOU, Howell observed that "the stated intent of the Secret Service is unambiguously to relinquish control of the records. . . and the Secret Service's actions are not necessarily inconsistent with that intent. The 'intent' factor of the analysis, therefore, weighs in the defendant's favor." Turning to the use and disposal factor, Howell indicated that "the Secret Service argues that it is unable to dispose of the records freely because they are ultimately White House records and not agency records. This argument is circular. The claimed restrictions on disposal stem from the defendant's assumption that the documents are under Presidential controlâ€"the exact point that the defendant seeks to prove to establish that the documents are not subject to FOIA." Rejecting the claim, Howell noted that "while the Court duly recognizes that the Secret Service's freedom to use and dispose of the records is somewhat circumscribed, this portion of the calculus does not weigh in the Secret Service's favor." The agency argued its reliance on the records was limited. But Howell pointed out that "this 'limited' reliance is directly tied to the purpose of the records in the first place. The [visitors' logs] are createdâ€"above all elseâ€"to facilitate the precise uses for which the Secret Service relies upon them" in admitting visitors to the White House and Vice-President's residence. She explained that "the fact that the Secret Service uses the documents for the limited purpose for which they were created strongly suggests the documents are 'agency records' under FOIA." The agency contended it did not integrate the records into its files, but transferred them to the White House. Howell observed that "it is also worth noting that the Secret Service has 'retained copies' of all of the [visitors'] data in question. Even if the Court assumes that all of the records in question have, in fact, been deleted from the Secret Service's computer system since their initial use, the Secret Service does not contest that the records were at one point an integrated portion of its computer system." Howell then dismissed the agency's constitutional separation of powers argument that disclosure could impinge on presidential confidentiality. She pointed out that "the FOIA has built-in exemptions that mitigate the risk of the precise separation of powers concerns the defendant raises. . ." Acknowledging the agency's national security concerns, Howell told the agency to process the request. She noted that "at no point does the Secret Service assert, however, that there are not at least some records implicated by plaintiff's FOIA request that could be easily searched for, separated out, and disclosed without raising national security concerns. For example, there may be certain White House components whose visitors never implicate national security concerns." She concluded that "the proper course of action by the Secret Service is duly to process plaintiff's FOIA request, disclose all segregable, non-exempt records, and then assert specific FOIA exemptions for all records it seeks to withhold. . .At this stage, however, the defendant has not met its burden to show that the requested material either falls within a FOIA exemption or would be unreasonably burdensome to search."
Issues: Agency Record

Date Filed	Doc #	Docket Text
2009-12-07	1	COMPLAINT against UNITED STATES SECRET SERVICE ( Filing fee $ 350, receipt number 4616025969) filed by JUDICAL WATCH, INC.,. (Attachments: # 1 Civil Cover Sheet)(rdj) (Entered: 12/08/2009)
2009-12-07		SUMMONS (3) Issued as to UNITED STATES SECRET SERVICE, U.S. Attorney and U.S. Attorney General (rdj) (Entered: 12/08/2009)
2009-12-07	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICAL WATCH, INC., identifying Corporate Parent NONE for JUDICAL WATCH, INC.,. (rdj) (Entered: 12/08/2009)
2010-01-07	3	SUMMONS Returned Executed by JUDICAL WATCH, INC.. UNITED STATES SECRET SERVICE served on 12/14/2009, answer due 1/13/2010. (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 01/07/2010)
2010-01-08	4	NOTICE of Appearance by Brad P. Rosenberg on behalf of UNITED STATES SECRET SERVICE (Rosenberg, Brad) (Entered: 01/08/2010)
2010-01-13	5	ANSWER to 1 Complaint by UNITED STATES SECRET SERVICE.(Rosenberg, Brad) (Entered: 01/13/2010)
2010-01-26		MINUTE ORDER. The parties shall submit a joint case management report and proposed deadlines for submission of dispositive motions, or other appropriate course of action, by no later than February 15, 2010. If the parties are unable to reach agreement with respect to the case management report and proposed deadlines, each party shall submit its own report and proposed order setting deadlines. Signed by Judge Henry H. Kennedy, Jr. on January 26, 2010. (NP) (Entered: 01/26/2010)
2010-02-12	6	STATUS REPORT (Joint Case Management Report) by JUDICAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Peterson, James) (Entered: 02/12/2010)
2010-02-19	7	Consent MOTION for Extension of Time to File (Motion to Modify Proposed Briefing Schedule) by JUDICAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Peterson, James) (Entered: 02/19/2010)
2010-02-22	8	MOTION for Partial Summary Judgment by JUDICAL WATCH, INC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Text of Proposed Order)(Peterson, James) (Entered: 02/22/2010)
2010-02-24	9	ORDER granting 7 Plaintiff's Consent Motion to Modify Proposed Briefing Schedule. Signed by Judge Henry H. Kennedy, Jr. on February 24, 2010. (NP) (Entered: 02/24/2010)
2010-04-19	10	Consent MOTION for Extension of Time to File Opposition and Cross-Motion for Summary Judgment and to Modify Briefing Schedule by UNITED STATES SECRET SERVICE (Attachments: # 1 Text of Proposed Order)(Rosenberg, Brad) (Entered: 04/19/2010)
2010-04-20		MINUTE ORDER granting 10 Defendant's Consent Motion for Extension of Time and to Modify Briefing Schedule. Accordingly, defendant's opposition to plaintiff's summary judgment motion and cross-motion are due on April 21, 2010; plaintiff's reply in support of its motion and opposition to defendant's cross-motion are due on May 14, 2010; and defendant's reply in support of its cross-motion is due on June 4, 2010. Signed by Judge Henry H. Kennedy, Jr. on April 20, 2010. (NP) (Entered: 04/20/2010)
2010-04-21	11	NOTICE of Lodging of Classified Declaration by UNITED STATES SECRET SERVICE (Rosenberg, Brad) (Entered: 04/21/2010)
2010-04-21	12	NOTICE of Appearance by John Russell Tyler on behalf of UNITED STATES SECRET SERVICE (Tyler, John) (Entered: 04/21/2010)
2010-04-21	13	Memorandum in opposition to re 8 MOTION for Partial Summary Judgment filed by UNITED STATES SECRET SERVICE. (Attachments: # 1 Declaration of Philip C. Droege, # 2 Declaration of Donald E. White, # 3 Declaration of Nathan D. Tibbits (Redacted/Unclassified), # 4 Exhibit A: Opening the People's House, # 5 Exhibit B: White House Voluntary Disclosure Policy, # 6 Exhibit C: Request for White House Visitor Access Records, # 7 Exhibit D: Judicial Watch FOIA Request, # 8 Exhibit E: USSS Response to FOIA Request, # 9 Exhibit F: Judicial Watch Appeal, # 10 Exhibit G: USSS Response to Appeal, # 11 Exhibit H: Cover Letters for Production of Visitor Records, # 12 Exhibit I: Vacatur of Washington Post Opinion, # 13 Exhibit J: Pusa v. FBI, # 14 Exhibit K: Judicial Watch Press Release, # 15 Exhibit L: Letter from Eisen to Judicial Watch, # 16 Text of Proposed Order)(Rosenberg, Brad) (Entered: 04/21/2010)
2010-04-21	14	Cross MOTION for Summary Judgment by UNITED STATES SECRET SERVICE (Attachments: # 1 Declaration of Philip C. Droege, # 2 Declaration of Donald E. White, # 3 Declaration of Nathan D. Tibbits (Redacted/Unclassified), # 4 Exhibit A: Opening the People's House, # 5 Exhibit B: White House Voluntary Disclosure Policy, # 6 Exhibit C: Request for White House Visitor Access Records, # 7 Exhibit D: Judicial Watch FOIA Request, # 8 Exhibit E: USSS Response to FOIA Request, # 9 Exhibit F: Judicial Watch Appeal, # 10 Exhibit G: USSS Response to Appeal, # 11 Exhibit H: Cover Letters for Production of Visitor Records, # 12 Exhibit I: Vacatur of Washington Post Opinion, # 13 Exhibit J: Pusa v. FBI, # 14 Exhibit K: Judicial Watch Press Release, # 15 Exhibit L: Letter from Eisen to Judicial Watch, # 16 Text of Proposed Order)(Rosenberg, Brad) (Entered: 04/21/2010)
2010-05-13	15	Consent MOTION for Extension of Time to File by JUDICAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Peterson, James) (Entered: 05/13/2010)
2010-05-14		MINUTE ORDER granting 15 Plaintiff's Consent Motion for an Extension of Time and To Modify Briefing Schedule. Accordingly, plaintiff's reply in support of its summary judgment motion and opposition to defendant's cross-motion is due May 21, 2010; defendant's reply in support of its cross-motion is due June 11, 2010. Signed by Judge Henry H. Kennedy, Jr. on May 14, 2010. (NP) (Entered: 05/14/2010)
2010-05-21	16	REPLY to opposition to motion re 8 MOTION for Partial Summary Judgment filed by JUDICAL WATCH, INC.. (Peterson, James) (Entered: 05/21/2010)
2010-05-21	17	Memorandum in opposition to re 14 Cross MOTION for Summary Judgment with Response to Statement of Material Facts filed by JUDICAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Peterson, James) (Entered: 05/21/2010)
2010-06-09	18	NOTICE of Change of Address by Paul J. Orfanedes (Orfanedes, Paul) (Entered: 06/09/2010)
2010-06-09	19	NOTICE of Change of Address by James F. Peterson (Peterson, James) (Entered: 06/09/2010)
2010-06-11	20	REPLY to opposition to motion re 14 Cross MOTION for Summary Judgment filed by UNITED STATES SECRET SERVICE. (Attachments: # 1 Declaration of Mickey M. Nelson)(Rosenberg, Brad) (Entered: 06/11/2010)
2011-01-20		Case reassigned to U.S. District Judge Beryl A. Howell. Judge Henry H. Kennedy no longer assigned to the case. (gt, ) (Entered: 01/20/2011)
2011-08-17	21	MEMORANDUM OPINION regarding 8 plaintiff's motion for partial summary judgment and 14 defendant's cross-motion for summary judgment. Signed by Judge Beryl A. Howell on 8/17/2011. (lcbah2) (Entered: 08/17/2011)
2011-08-17	22	ORDER granting 8 plaintiff's motion for partial summary judgment and denying 14 defendant's motion for summary judgment for the reasons set forth in the accompanying Memorandum Opinion. Further details within Order. Signed by Judge Beryl A. Howell on 8/17/2011. (lcbah2) (Entered: 08/17/2011)
2011-08-17		Set/Reset Deadlines: On or before 9/6/2011, attorneys shall meet and confer and file a joint report proposing a schedule for the remainder of this litigation. See order for specifics. (zalg, ) (Entered: 08/17/2011)
2011-08-19	23	Consent MOTION for Extension of Time to Submit Joint Report by UNITED STATES SECRET SERVICE (Attachments: # 1 Text of Proposed Order)(Rosenberg, Brad) (Entered: 08/19/2011)
2011-08-22		MINUTE ORDER (paperless) granting 23 Consent Motion for Extension of Time to File Joint Report. On or before September 20, 2011, the parties shall meet and confer and file a joint report proposing a schedule for the remainder of this litigation and addressing the prospects for settlement of this case or narrowing the scope of the requests at issue. Signed by Judge Beryl A. Howell on 8/22/2011. (lcbah2) (Entered: 08/22/2011)
2011-08-22		Set/Reset Deadlines: Joint Report due by 9/20/2011. (zalg, ) (Entered: 08/23/2011)
2011-09-20	24	STATUS REPORT by JUDICAL WATCH, INC., UNITED STATES SECRET SERVICE. (Rosenberg, Brad) (Entered: 09/20/2011)
2011-10-14	25	NOTICE OF APPEAL as to 22 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment,, 21 Memorandum & Opinion by UNITED STATES SECRET SERVICE. Fee Status: No Fee Paid. Parties have been notified. (Rosenberg, Brad) (Entered: 10/14/2011)
2011-10-17	26	Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the fee was an Appeal by the Government re 25 Notice of Appeal. (rdj) (Entered: 10/17/2011)
2011-10-19		USCA Case Number 11-5282 for 25 Notice of Appeal filed by UNITED STATES SECRET SERVICE. (kb, ) (Entered: 10/19/2011)
2011-10-20	27	MOTION to Stay re 22 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment,, Pending Appeal by UNITED STATES SECRET SERVICE (Attachments: # 1 Declaration of Craig W. Ulmer, # 2 Text of Proposed Order)(Rosenberg, Brad) (Entered: 10/20/2011)
2011-11-03	28	Memorandum in opposition to re 27 MOTION to Stay re 22 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment,, Pending Appeal MOTION to Stay re 22 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment,, Pending Appeal filed by JUDICAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Peterson, James) (Entered: 11/03/2011)
2011-11-10	29	REPLY to opposition to motion re 27 MOTION to Stay re 22 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment,, Pending Appeal MOTION to Stay re 22 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment,, Pending Appeal filed by UNITED STATES SECRET SERVICE. (Attachments: # 1 Exhibit A: Show Cause Order, # 2 Exhibit B: Response to Show Cause Order, # 3 Exhibit C: Discharge of Show Cause Order)(Rosenberg, Brad) (Entered: 11/10/2011)
2011-11-14	30	ORDER granting 27 Defendant's Motion For Stay Pending Appeal. Signed by Judge Beryl A. Howell on November 14, 2011. (lcbah1) (Entered: 11/14/2011)
2011-11-15	31	Supplemental Record on Appeal transmitted to US Court of Appeals re 25 Notice of Appeal, 30 Order on Motion to Stay ;USCA Case Number 11-05282. (jf, ) (Entered: 11/15/2011)
2013-10-28	32	MANDATE of USCA (certified copy) as to 25 Notice of Appeal to DC Circuit Court filed by UNITED STATES SECRET SERVICE ; ORDERED and ADJUDGED that the judgement of the District Court appealed from in this cause is hereby affirmed in part, reversed in part, and the case is remanded for further proceedings, in accordance with the opinion of the court filed herein this date. USCA Case Number 11-5282. (md, ) (Entered: 10/29/2013)
2013-10-29		MINUTE ORDER (paperless) In light of the 32 Mandate issued by the U.S. Court of Appeals for the District of Columbia Circuit, the parties shall file, by November 5, 2013, a joint status report proposing a schedule to govern further proceedings in this matter. Signed by Judge Beryl A. Howell on 10/29/2013. (lcbah2) (Entered: 10/29/2013)
2013-10-29		Set/Reset Deadlines: Joint Status Report due by 11/5/2013. (tg, ) (Entered: 10/29/2013)
2013-10-31	33	Consent MOTION for Extension of Time to Submit Joint Status Report by UNITED STATES SECRET SERVICE (Attachments: # 1 Text of Proposed Order)(Rosenberg, Brad) (Entered: 10/31/2013)
2013-10-31		MINUTE ORDER (paperless) granting the defendant's 33 Consent Motion for Extension of Time to Submit Joint Status Report. Accordingly, the parties shall submit, by November 19, 2013, a joint status report proposing a schedule to govern further proceedings in this matter. Signed by Judge Beryl A. Howell on 10/31/2013. (lcbah2) (Entered: 10/31/2013)
2013-11-01		Set/Reset Deadlines: Joint Status Report due by 11/19/2013 (tg, ) (Entered: 11/01/2013)
2013-11-19	34	STATUS REPORT (Joint) by UNITED STATES SECRET SERVICE. (Attachments: # 1 Text of Proposed Order)(Rosenberg, Brad) (Entered: 11/19/2013)
2013-11-19		MINUTE ORDER (paperless) directing the parties to file, by January 21, 2014, a joint status report proposing a schedule to govern further proceedings in this matter. Signed by Judge Beryl A. Howell on November 19, 2013. (lcbah1) (Entered: 11/19/2013)
2013-11-20		Set/Reset Deadlines: Joint Status Report due by 1/21/2014. (tg, ) (Entered: 11/20/2013)
2014-01-21	35	STATUS REPORT (Joint) by UNITED STATES SECRET SERVICE. (Attachments: # 1 Text of Proposed Order)(Rosenberg, Brad) (Entered: 01/21/2014)
2014-01-22		MINUTE ORDER (paperless) imposing the following SCHEDULING ORDER in accordance with the 35 Joint Status Report: by March 3, 2014, the defendant shall file any dispositive motion; by March 24, 2014, the plaintiff shall file any opposition; and by April 7, 2014, the defendant shall file any reply. Signed by Judge Beryl A. Howell on 01/22/2014. (lcbah2) (Entered: 01/22/2014)
2014-01-23		Set/Reset Deadlines: Dispositive Motion due by 3/3/2014; Opposition to Dispositive Motion due by 3/24/2014; Reply due by 4/7/2014. (tg, ) (Entered: 01/23/2014)
2014-02-21	36	Unopposed MOTION to Modify the Briefing Schedule by UNITED STATES SECRET SERVICE (Attachments: # 1 Text of Proposed Order)(Rosenberg, Brad) (Entered: 02/21/2014)
2014-02-21		MINUTE ORDER (paperless) GRANTING the defendant's 36 Unopposed Motion to Modify the Briefing Schedule. Accordingly, the Court amends the SCHEDULING ORDER as follows: the defendant shall file any dispositive motion by March 24, 2014. The plaintiff shall file any opposition by April 14, 2014. The defendant shall file any reply by April 28, 2014. Signed by Judge Beryl A. Howell on February 21, 2014. (lcbah2) (Entered: 02/21/2014)
2014-02-21		Set/Reset Deadlines: The defendant shall file any dispositive motion by 3/24/2014; The plaintiff shall file any opposition by 4/14/2014; The defendant shall file any reply by 4/28/2014. (ad) (Entered: 02/21/2014)
2014-03-24	37	Second MOTION for Summary Judgment by UNITED STATES SECRET SERVICE (Attachments: # 1 Declaration of William Willson, # 2 Text of Proposed Order)(Rosenberg, Brad) (Entered: 03/24/2014)
2014-04-14	38	STIPULATION of Dismissal by JUDICAL WATCH, INC.. (Peterson, James) (Entered: 04/14/2014)
2014-04-14		MINUTE ORDER (paperless) DISMISSING this matter, with prejudice, pursuant to the parties' 38 Stipulation of Dismissal With Prejudice. The Clerk is directed to close this case. Signed by Judge Beryl A. Howell on April 14, 2014. (lcbah2) (Entered: 04/14/2014)
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