|Case Title||WASHINGTON POST v. DEPARTMENT OF HOMELAND SECURITY|
|District||District of Columbia|
|Judge||Judge Ricardo M. Urbina|
|Defendant||DEPARTMENT OF HOMELAND SECURITY|
Complaint attachment 1
FOIA Project Annotation: Judge Ricardo Urbina has ruled that the Secret Service must expedite a request filed by the Washington Post for access to visitors' logs at the Vice Presidential residence, as well as visitors at the White House who have come to see Vice President Dick Cheney or one of his staff. Specifically, the Post asked for records from two monitoring systems â€" the Worker and Visitor Entrance System and the Control Records System. Post reporter Jo Becker asked for expedited processing of the request, which, initially, was denied by the Secret Service, then granted when the paper appealed. However, the Department of Homeland Security, of which the Secret Service is a part, then informed Becker that the records were presidential records and not agency records subject to FOIA. Before Urbina, the agency argued that expedited judicial review of the Post's request for a preliminary injunction was not appropriate because the paper was actually asking for "immediate disclosure of non-exempt documents." Urbina disagreed, noting that the Post was only seeking court-ordered expedited processing. He noted that "the plaintiff asserts statutory entitlement to expedited review of the FOIA request, based on the statutory predicate that the plaintiff has a 'compelling need' for the information. To afford the plaintiff less than expedited judicial review would all but guarantee that the plaintiff would not receive expedited agency review of its FOIA request." He added that "the court considers expedited review of the plaintiff's claims patently appropriate in providing the plaintiff meaningful judicial review of its claims." Urbina indicated that "the only issue for the court, therefore, is whether the plaintiff is entitled to full FOIA processing of its records request. According to the defendant, the plaintiff is not entitled to FOIA processing because it believes that the records sought are, categorically, not agency records subject to FOIA." Turning to the agency record argument, Urbina noted that the government argued that the WAVES records â€" those concerning visitor entrances to the White House â€" were not created or obtained by the Secret Service. Rather, the government claimed, "the WAVES records are generated through actions taken by the Office of the Vice President." Urbina found this claim unconvincing, pointing out that "the records, at a minimum, are 'obtained' by the Secret Service in the performance of official duties." Although the government's description of how the records were created was ambiguous, it stated that the Secret Service's typical practice is to "transfer newly-generated WAVES records. . .to the White House Office of Records Management." Urbina observed that "likely, the 'newly-generated' records, were, in fact, created by the Secret Service. At a bare minimum, they were 'obtained by the agency' shortly after their creation by a third entity unidentified by the defendant. And probably, the defendant's argument rests on the defendant's confusion between the agency that created a record with the source of the information contained in that record; here the Office of the Vice President provides the information." He added that "because the defendant bears the burden of demonstrating that the records are not 'agency records,' however, the court resolves the ambiguity created by the defendant's language in the plaintiff's favor." As to the degree of control the Secret Service exercised over the records, Urbina agreed with the government that "through its established practice, the Secret Service has a clear intent to relinquish control of the records" to the White House Office of Records Management. He found that the agency's ability to use and dispose of the records as it saw fit was quite limited. But he disagreed that the use of the information by the Secret Service was limited. He pointed out that "while the defendant is correct that the Secret Service's use of the WAVES records is limited, the defendant fails to recognize that the very purpose of the WAVES records is limited. Indeed, the inquiry as to the agency's use of a document is tethered to the purpose behind the records' creation in the first instance." He observed that "here, the WAVES records are generated solely for their use by the Secret Service in protecting the [White House Complex]. And the Secret Service utilizes the WAVES records in security related to visitor access to the WHC. As such, the Secret Service's use of the WAVES records encompasses the entire scope of their purpose." Urbina then used the D.C. Circuit's test for personal records in Bureau of National Affairs v. Dept. of Justice, 742 F.2d 1484 (D.C. Cir. 1984), where the appellate court had found that daily agendas of an Assistant Attorney General were agency records while his desk calendar was not. Urbina noted that the D.C. Circuit had distinguished between the two records because the daily agendas were "used within the agency," while the desk calendar was not. Applying the BNA holding to the visitors' logs, Urbina pointed out that "like the documents sought in that case, the WAVES records were created by agency officials, were in the physical custody of Secret Service personnel during their use, and were not merged with agency files. And like the daily agendas, the agency's use of the WAVES records serves an official function." The government argued that disclosure of visitors' logs for the vice president's residence would interfere with Cheney's ability to discharge his official functions. Pointing out parallels between this case and the litigation over the records of the energy task force, the government urged Urbina to dismiss the request for visitors' logs for the vice president's residence because of potential constitutional problems. But Urbina observed that "here, the defendant has identified no ambiguity in the FOIA statute. Rather, in deference to the defendant's concerns, the court must strictly apply the FOIA statute." He added that "the defendant's concerns regarding the potential damage that disclosure would have on the Vice President's ability to discharge his official functions are appropriately addressed by this court if, and when, the defendant invokes a specific FOIA exception." He indicated that "at this juncture, however, the plaintiff is not asking the court to mandate disclosure of the records. Instead, it seeks only that the court direct the agency to fully process its FOIA request and to do so in an expedited fashion. The defendant has neither demonstrated nor argued that simply processing the plaintiff's FOIA request will do injury to the Vice President's abilities to discharge the duties of his office." Comparing the WAVES records with the ACR records, Urbina explained that "the only difference the court can find in the defendant's explanation of the lists generated for entry to the VPR and the WAVES and the [visitor's log for the vice presidential residence], is that the visitor lists to the VPR are 'handwritten on an entry log by the officer working at the gate where the individual arrives.' The defendant provides no legal justification for treating the handwritten records differently than typed or computer generated, and the court can fathom none." He concluded that "the logs in question are created by the Secret Service and created solely and exclusively for a particular purpose, albeit limited. . .These records have 'come into the agency's possession in the legitimate conduct of its official duties.' Therefore, and for the reasons given regarding the WAVES records, the logs created by the Secret Service pertaining to visitors of the VPR are created or controlled by the Secret Service and are under the control of the Secret Service." Urbina then granted the Post's motion for a preliminary injunction. He noted that "the reason the plaintiff gives for expedited processing in this matter is that the information is of vital public interest for an upcoming congressional election. . .Because the urgency with which the plaintiff makes its FOIA request is predicated on a matter of current national debate, due to the impending election, a likelihood for irreparable harm exists if the plaintiff's FOIA request does not receive expedited treatment." Urbina rejected the agency's argument that expedited processing would harm the public because it would put the Post ahead of other requesters. Saying that the argument was unconvincing, Urbina pointed out that "the government concedes that the plaintiff here has a statutory right to expedited processing. If anything, the public's interest in this case is best assessed through the statutory provisions passed by the public's elected representatives. In that vein, pursuant to the statutory provision mandating expedited treatment, the public's interest in expedited processing of the plaintiff's request outweighs any general interest that it has in first-in-first-out processing of FOIA requests."
Issues: Expedited processing - Compelling Need
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